| |
| |
|
|
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) and |
|
|
(c-2) 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 probable cause to believe the other person |
|
|
committed an offense: |
|
|
(A) performs a search for the purpose of granting |
|
|
access to a publicly accessible building or form of transportation; |
|
|
and |
|
|
(B) intentionally, knowingly, or recklessly: |
|
|
(i) touches the anus, sexual organ, |
|
|
buttocks, or breast of the other person, including touching through |
|
|
clothing; or |
|
|
(ii) touches the other person in a manner |
|
|
that would be offensive to a reasonable person. |
|
|
(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 an explicit and applicable grant of federal |
|
|
statutory authority that is consistent with the United States |
|
|
Constitution. |
|
|
SECTION 2. (a) This section applies only to a prosecution of |
|
|
an offense under Section 39.03(a)(2), 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 Section |
|
|
39.03(a)(2), 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 secured by the |
|
|
Ninth Amendment to 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 immediately if it receives |
|
|
a vote of two-thirds of all the members elected to each house, as |
|
|
provided by Section 39, Article III, Texas Constitution. If this |
|
|
Act does not receive the vote necessary for immediate effect, this |
|
|
Act takes effect September 1, 2011. |