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A BILL TO BE ENTITLED
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AN ACT
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relating to the protection of free speech rights at institutions of |
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higher education, including the prosecution of the offenses of |
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trespass, damage, and defacement at certain institutions of higher |
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education, and criminal trespass. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 38, Code of Criminal Procedure, is |
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amended by adding Article 38.52 to read as follows: |
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Art. 38.52. EVIDENCE IN PROSECUTION FOR CERTAIN OFFENSES |
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INVOLVING EXPRESSIVE ACTIVITY AT HIGHER EDUCATION INSTITUTION. (a) |
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In this article, "expressive activities" has the meaning assigned |
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by Section 51.9315, Education Code. |
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(b) This article applies only to the prosecution of an |
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offense under Section 30.05 or 42.03, Penal Code, that occurred on |
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the campus of an institution of higher education while the |
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defendant was engaging in expressive activities. |
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(c) In the prosecution of an offense described by Subsection |
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(b), evidence of the following is admissible: |
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(1) an institution of higher education's resolution of |
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an alleged violation of the institution's policies on expressive |
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activities related to the defendant's conduct giving rise to the |
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offense; and |
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(2) a resolution by the campus free expression review |
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board established under Section 51.9316, Education Code, of an |
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appeal to the review board of an institution of higher education's |
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resolution described by Subdivision (1). |
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SECTION 2. Section 51.204, Education Code, is amended by |
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adding Subsection (c) to read as follows: |
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(c) It is an affirmative defense to prosecution under this |
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section that the person: |
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(1) at the time of the offense, was engaging in |
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expressive activities, as defined by Section 51.9315; and |
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(2) was found not to have engaged in any misconduct by |
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the institution or the campus free expression review board |
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established under Section 51.9316 with respect to the conduct |
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giving rise to the offense. |
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SECTION 3. Section 51.9315(a), Education Code, is amended |
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by amending Subdivision (2) and adding Subdivision (3-a) to read as |
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follows: |
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(2) "Expressive activities" means any speech or |
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expressive conduct protected by the First Amendment to the United |
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States Constitution or by Section 8, Article I, Texas Constitution, |
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and includes assemblies, protests, speeches, the distribution of |
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written material, the carrying of signs, [and] the distribution and |
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circulation of petitions or digital media, and symbolic expression, |
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including the wearing of symbolic clothing or accessories. The |
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term does not include commercial speech or hate speech, including |
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symbols associated with hate speech. |
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(3-a) "Review board" means the campus free expression |
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review board established under Section 51.9316. |
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SECTION 4. Section 51.9315, Education Code, is amended by |
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amending Subsections (b), (c), (d), (f), and (h) and adding |
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Subsections (d-1) and (h-1) to read as follows: |
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(b) It is the policy of this state and the purpose of this |
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section to ensure an open, inclusive exchange of ideas fundamental |
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to higher education and protect the expressive rights of persons |
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guaranteed by the constitutions of the United States and of this |
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state by: |
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(1) recognizing freedom of speech and assembly as |
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central to the mission of institutions of higher education; and |
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(2) ensuring that all persons may assemble peaceably |
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on the campuses of institutions of higher education for expressive |
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activities, including to listen to or observe the expressive |
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activities of others. |
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(c) An institution of higher education shall: |
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(1) ensure that the common outdoor areas of the |
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institution's campus are deemed traditional public forums; and |
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(2) permit any person to engage in expressive |
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activities in those areas of the institution's campus freely, as |
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long as the person's conduct: |
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(A) is not unlawful; and |
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(B) does not materially and substantially |
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disrupt the academic instruction of classrooms or administrative |
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functioning of the institution. |
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(d) Notwithstanding Subsection (c), an institution of |
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higher education may adopt a policy that imposes reasonable |
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restrictions on the time, place, and manner of expressive |
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activities in the common outdoor areas of the institution's campus |
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if those restrictions: |
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(1) are narrowly tailored to serve a significant |
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institutional interest; |
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(2) employ clear, published, content-neutral, and |
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viewpoint-neutral criteria; |
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(3) provide for ample alternative means of expression; |
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and |
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(4) allow members of the university community to |
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assemble or distribute written, digital, or symbolic material |
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without a permit or other permission from the institution. |
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(d-1) A policy adopted under Subsection (d) must be approved |
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by the review board and amended in accordance with an order of the |
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review board. |
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(f) Each institution of higher education shall adopt a |
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policy detailing students' rights and responsibilities regarding |
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expressive activities at the institution. The policy must: |
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(1) allow: |
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(A) any person to, subject to reasonable |
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restrictions adopted under Subsection (d), engage in expressive |
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activities on campus, including by responding to the expressive |
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activities of others; and |
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(B) student organizations and faculty to, |
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subject to Subsection (h), invite speakers to speak on campus; |
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(2) establish disciplinary sanctions for students, |
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student organizations, or faculty who unduly interfere with the |
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expressive activities of others on campus; |
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(3) include a grievance procedure for addressing |
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complaints of a violation of this section that includes mechanisms |
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for redress; |
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(4) be approved by a majority vote of the institution's |
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governing board before final adoption; [and] |
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(5) be posted on the institution's Internet website; |
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(6) be approved by the review board; and |
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(7) be amended in accordance with an order of the |
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review board. |
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(h) In determining whether to approve a speaker to speak on |
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campus or in determining the amount of a fee to be charged for use of |
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the institution's facilities for purposes of engaging in expressive |
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activities, an institution of higher education: |
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(1) may consider only content-neutral and |
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viewpoint-neutral criteria related to the needs of the event, such |
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as: |
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(A) the proposed venue and the expected size of |
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the audience; |
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(B) any anticipated need for campus security |
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based on the factors described by Paragraph (A) and any history of |
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unprotected or unlawful speech by the speaker or the requesting |
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student organization or faculty member; |
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(C) any necessary accommodations; and |
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(D) any relevant history of compliance or |
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noncompliance by the requesting student organization or faculty |
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member with the institution's policy adopted under Subsection (f) |
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and any other relevant policies; and |
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(2) may not consider any anticipated controversy |
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related to the event. |
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(h-1) If an institution of higher education charges a fee |
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for use of the institution's facilities for purposes of engaging in |
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expressive activities, the institution shall provide to the person |
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directed to pay the fee an itemized receipt detailing the method for |
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determining the amount of the fee. |
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SECTION 5. Subchapter Z, Chapter 51, Education Code, is |
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amended by adding Sections 51.9316 and 51.9317 to read as follows: |
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Sec. 51.9316. CAMPUS FREE EXPRESSION REVIEW BOARD. (a) In |
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this section, "review board" means the campus free expression |
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review board established under this section. |
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(b) The campus free expression review board is established |
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to assess the policies and practices of institutions of higher |
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education regarding expressive activities under Section 51.9315 to |
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ensure fairness, viewpoint neutrality, and protection of those |
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activities. |
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(c) The review board is composed of the following eight |
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members: |
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(1) two members appointed by the most senior member of |
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the majority party of the Texas House of Representatives; |
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(2) two members appointed by the most senior member of |
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the minority party of the Texas House of Representatives; |
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(3) two members appointed by the most senior member of |
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the majority party of the Texas State Senate; and |
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(4) two members appointed by the most senior member of |
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the minority party of the Texas State Senate. |
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(d) In appointing members of the review board, the |
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appointing authorities under Subsection (c) shall coordinate to |
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ensure that the review board includes legal scholars, legal |
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professionals, or professionals in the nonprofit sector who |
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specialize in the First Amendment to the United States Constitution |
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and free speech protections. |
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(e) A member of the review board serves a two-year term. |
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(f) The members of the review board shall elect a |
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chairperson by majority vote. |
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(g) A member of the review board is not entitled to |
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compensation but may be reimbursed for actual and necessary travel |
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and other expenses incurred in the performance of the member's |
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duties on the review board. |
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(h) A person aggrieved by an institution of higher |
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education's resolution of the grievance procedure under Section |
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51.9315(f) may appeal that decision to the review board. In |
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considering the appeal, the review board shall review the content |
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of the institution's policies adopted under Section 51.9315 and may |
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require the institution to amend those policies to resolve any |
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infringements on protected speech or violations of Section 51.9315 |
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that the review board identifies. |
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(i) The review board shall establish and make available to |
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institutions of higher education criteria for: |
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(1) evaluating the viewpoint neutrality, clarity, and |
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accessibility of policies adopted by an institution of higher |
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education under Section 51.9315; and |
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(2) hearing appeals to an institution of higher |
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education's grievance procedure under Section 51.9315(f). |
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Sec. 51.9317. SUIT FOR PROTECTED SPEECH VIOLATION. (a) In |
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this section, "institution of higher education" has the meaning |
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assigned by Section 61.003. |
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(b) A person may bring an action for injunctive relief |
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against an institution of higher education to compel the |
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institution to comply with the First Amendment to the United States |
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Constitution, Section 8, Article I, Texas Constitution, or Section |
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51.9315. On a finding that the institution violated one or more of |
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those provisions, the court shall award the person compensatory |
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damages, reasonable attorney fees, and court costs. |
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(c) An institution of higher education's sovereign immunity |
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to suit and from liability is waived and abolished to the extent of |
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liability created under this section. |
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SECTION 6. Section 30.05, Penal Code, is amended by adding |
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Subsection (j) to read as follows: |
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(j) It is an affirmative defense to prosecution under this |
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section that the actor entered property owned or leased by an |
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institution of higher education or other higher education |
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institution and: |
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(1) at the time of the offense, was engaging in |
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expressive activities, as defined by Section 51.9315, Education |
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Code; and |
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(2) was found not to have engaged in any misconduct by |
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the institution or the campus free expression review board |
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established under Section 51.9316, Education Code, with respect to |
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the conduct giving rise to the offense. |
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SECTION 7. Article 38.52, Code of Criminal Procedure, |
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Section 51.204(c), Education Code, and Section 30.05(j), Penal |
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Code, as added by this Act, apply only to an offense committed on or |
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after the effective date of this Act. An offense committed before |
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the effective date of this Act is governed by the law in effect on |
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the date the offense was committed, and the former law is continued |
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in effect for that purpose. For purposes of this section, an |
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offense was committed before the effective date of this Act if any |
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element of the offense occurred before that date. |
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SECTION 8. Section 51.9315, Education Code, as amended by |
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this Act, applies beginning with the 2026-2027 academic year. |
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SECTION 9. Section 51.9317, Education Code, as added by |
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this Act, applies only to a cause of action that accrues on or after |
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the effective date of this Act. |
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SECTION 10. This Act takes effect September 1, 2025. |