By: Patrick, et al.	S.B. No. 29
	(In the Senate - Filed June 2, 2011; June 21, 2011, read
	first time and referred to Committee on Transportation and Homeland
	Security; June 27, 2011, reported adversely, with favorable
	Committee Substitute by the following vote:  Yeas 5, Nays 3;
	June 27, 2011, sent to printer.)
	COMMITTEE SUBSTITUTE FOR S.B. No. 29	By:  Hinojosa

	A BILL TO BE ENTITLED
	AN ACT
	relating to prosecution and punishment for the offense of official
	oppression by the intrusive touching of persons seeking access to
	public buildings and transportation; providing penalties.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Section 39.03, Penal Code, is amended by
	amending Subsections (a) and (b) and adding Subsections (c-1),
	(c-2), (c-3), (c-4), and (c-5) to read as follows:
	(a)  A person who is a public servant [acting under color of
	his office or employment] commits an offense if the person:
	(1)  while acting under color of the person's office or
	employment [he]:
	(A) [(1)]  intentionally subjects another person
	to mistreatment or to arrest, detention, search, seizure,
	dispossession, assessment, or lien that the actor [he] knows is
	unlawful;
	(B) [(2)]  intentionally denies or impedes
	another person in the exercise or enjoyment of any right,
	privilege, power, or immunity, knowing the actor's [his] conduct is
	unlawful; or
	(C) [(3)]  intentionally subjects another person
	to sexual harassment; or
	(2)  while acting under color of the person's office or
	employment without reasonable suspicion to believe the other person
	committed an offense:
	(A)  performs a constitutionally unreasonable
	search without effective consent for the purpose of granting access
	to a publicly accessible building or form of transportation; and
	(B)  intentionally, knowingly, or recklessly, and
	in violation of the United States Constitution, touches the anus,
	sexual organ, buttocks, or breast of the other person, including
	touching through clothing.
	(b)  For purposes of this section, a person who is a public
	servant acts under color of the person's [his] office or employment
	if the person [he] acts or purports to act in an official capacity
	or takes advantage of such actual or purported capacity.
	(c-1)  For purposes of Subsection (a)(2), "public servant"
	includes:
	(1)  an officer, employee, or agent of:
	(A)  the United States;
	(B)  a branch, department, or agency of the United
	States; or
	(C)  another person acting under contract with a
	branch, department, or agency of the United States for the purpose
	of providing a security or law enforcement service; and
	(2)  any other person acting under color of federal
	law.
	(c-2)  For a person described by Subsection (c-1)(1) or (2),
	it is a defense to prosecution for an offense under Subsection
	(a)(2) that the actor performed the search pursuant to and
	consistent with the United States Constitution.
	(c-3)  For purposes of Subsection (a)(2), and
	notwithstanding Sections 1.07(a)(11) and (19), consent is
	effective only if, immediately before any search:
	(1)  the actor verbally describes:
	(A)  the area of the other person to be searched;
	and
	(B)  the method to be used in the search; and
	(2)  the actor receives express consent for the search
	only from:
	(A)  the other person; or
	(B)  the parent or guardian of the other person.
	(c-4)  It is a defense to prosecution for a person described
	by Subsection (c-1)(1) or (2) that a reasonable person in the
	defendant's position would have believed the defendant's conduct to
	be lawful.
	(c-5)  This section shall be construed, as a matter of state
	law, to be enforceable up to but no further than the maximum
	possible extent consistent with federal constitutional
	requirements, even if that construction is not readily apparent, as
	such constructions are authorized only to the extent necessary to
	save the section from judicial invalidation.  If any court
	determines that a provision of this section is unconstitutionally
	vague, the court shall interpret the provision, as a matter of state
	law, to avoid the vagueness issue and shall enforce the provision to
	the maximum possible extent.
	SECTION 2.  (a)  This section applies only to a prosecution
	of an offense under Subdivision (2), Subsection (a), Section 39.03,
	Penal Code, as added by this Act, in which the defendant was, at the
	time of the alleged offense, acting under the color of federal law.
	(b)  In a prosecution described by Subsection (a) of this
	section, if the government of the United States, the defendant, or
	the defendant's employer challenges the validity of Subdivision
	(2), Subsection (a), Section 39.03, Penal Code, as added by this
	Act, on grounds of unconstitutionality, preemption, or sovereign
	immunity, the attorney general of this state, with the consent of
	the appropriate local county or district attorney, shall take any
	actions necessary on behalf of the state to defend the validity of
	the statute. The attorney general may make any legal arguments the
	attorney general considers appropriate, including that this Act
	constitutes a valid exercise of:
	(1)  the state's police powers;
	(2)  the liberty interests of the people that are
	secured by the United States Constitution;
	(3)  the powers reserved to the states by the Tenth
	Amendment to the United States Constitution; or
	(4)  the rights and protections secured by the Texas
	Constitution.
	SECTION 3.  This Act takes effect on the 91st day after the
	last day of the legislative session.
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