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  By: Menéndez, et al. S.B. No. 179
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to harassment, bullying, and cyberbullying of a public
  school student or minor and injury to or death of a minor; creating
  a criminal offense.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  This Act shall be known as David's Law.
         SECTION 2.  Section 37.0832, Education Code, is amended by
  amending Subsections (a) and (c) and adding Subsections (a-1) and
  (f) to read as follows:
         (a)  In this section:
               (1)  "Bullying":
                     (A)  [, "bullying"] means a single significant act
  or a pattern of acts by one or more students directed at another
  student that exploits an imbalance of power and involves[, subject
  to Subsection (b),] engaging in written or verbal expression,
  expression through electronic means, or physical conduct that
  satisfies the applicability requirements provided by Subsection
  (a-1), [that occurs on school property, at a school-sponsored or
  school-related activity, or in a vehicle operated by the district]
  and that:
                           (i) [(1)]  has the effect or will have the
  effect of physically harming a student, damaging a student's
  property, or placing a student in reasonable fear of harm to the
  student's person or of damage to the student's property; [or]
                           (ii) [(2)]  is sufficiently severe,
  persistent, or [and] pervasive enough that the action or threat
  creates an intimidating, threatening, or abusive educational
  environment for a student;
                           (iii)  materially and substantially
  disrupts the educational process or the orderly operation of a
  classroom or school; or
                           (iv)  infringes on the rights of the victim
  at school; and
                     (B)  includes cyberbullying.
               (2)  "Cyberbullying" means bullying that is done
  through the use of any electronic communication device, including
  through the use of a cellular or other type of telephone, a
  computer, a camera, electronic mail, instant messaging, text
  messaging, a social media application, an Internet website, or any
  other Internet-based communication tool.
         (a-1)  This section applies to:
               (1)  bullying that occurs on or is delivered to school
  property or to the site of a school-sponsored or school-related
  activity on or off school property;
               (2)  bullying that occurs on a publicly or privately
  owned school bus or vehicle being used for transportation of
  students to or from school or a school-sponsored or school-related
  activity; and
               (3)  cyberbullying that occurs off school property or
  outside of a school-sponsored or school-related activity if the
  cyberbullying:
                     (A)  interferes with a student's educational
  opportunities; or
                     (B)  substantially disrupts the orderly operation
  of a classroom, school, or school-sponsored or school-related
  activity.
         (c)  The board of trustees of each school district shall
  adopt a policy, including any necessary procedures, concerning
  bullying that:
               (1)  prohibits the bullying of a student;
               (2)  prohibits retaliation against any person,
  including a victim, a witness, or another person, who in good faith
  provides information concerning an incident of bullying;
               (3)  establishes a procedure for providing notice of an
  incident of bullying to:
                     (A)  a parent or guardian of the alleged victim
  not later than the next school day after the incident is reported;
  and
                     (B)  a parent or guardian of the alleged bully
  within a reasonable amount of time after the incident;
               (4)  establishes the actions a student should take to
  obtain assistance and intervention in response to bullying;
               (5)  sets out the available counseling options for a
  student who is a victim of or a witness to bullying or who engages in
  bullying;
               (6)  establishes procedures for reporting an incident
  of bullying, including procedures for a student, parent, teacher,
  or administrator to anonymously report an incident of bullying,
  investigating a reported incident of bullying, and determining
  whether the reported incident of bullying occurred;
               (7)  prohibits the imposition of a disciplinary measure
  on a student who, after an investigation, is found to be a victim of
  bullying, on the basis of that student's use of reasonable
  self-defense in response to the bullying; and
               (8)  requires that discipline for bullying of a student
  with disabilities comply with applicable requirements under
  federal law, including the Individuals with Disabilities Education
  Act (20 U.S.C. Section 1400 et seq.).
         (f)  Each school district may establish a district-wide
  policy to assist in the prevention and mediation of bullying
  incidents between students that:
               (1)  interfere with a student's educational
  opportunities; or
               (2)  substantially disrupt the orderly operation of a
  classroom, school, or school-sponsored or school-related activity.
         SECTION 3.  Subchapter A, Chapter 37, Education Code, is
  amended by adding Section 37.0052 to read as follows:
         Sec. 37.0052.  PLACEMENT OR EXPULSION OF STUDENTS WHO HAVE
  ENGAGED IN CERTAIN BULLYING BEHAVIOR. (a)  In this section:
               (1)  "Bullying" has the meaning assigned by Section
  37.0832.
               (2)  "Intimate visual material" has the meaning
  assigned by Section 98B.001, Civil Practice and Remedies Code.
         (b)  A student may be removed from class and placed in a
  disciplinary alternative education program as provided by Section
  37.008 or expelled if the student:
               (1)  engages in bullying that encourages a student to
  commit or attempt to commit suicide;
               (2)  incites violence against a student through group
  bullying; or
               (3)  releases or threatens to release intimate visual
  material of a minor or a student who is 18 years of age or older
  without the student's consent.
         (c)  Nothing in this section exempts a school from reporting
  a finding of intimate visual material of a minor.
         SECTION 4.  Subchapter A, Chapter 37, Education Code, is
  amended by adding Section 37.0151 to read as follows:
         Sec. 37.0151.  REPORT TO LOCAL LAW ENFORCEMENT REGARDING
  CERTAIN CONDUCT CONSTITUTING ASSAULT OR HARASSMENT; LIABILITY.
  (a)  The principal of a public primary or secondary school, or a
  person designated by the principal under Subsection (c), may make a
  report to any school district police department, if applicable, or
  the police department of the municipality in which the school is
  located or, if the school is not in a municipality, the sheriff of
  the county in which the school is located if, after an investigation
  is completed, the principal has reasonable grounds to believe that
  a student engaged in conduct that constitutes an offense under
  Section 22.01 or 42.07(a)(7), Penal Code.
         (b)  A person who makes a report under this section may
  include the name and address of each student the person believes may
  have participated in the conduct.
         (c)  The principal of a public primary or secondary school
  may designate a school employee, other than a school counselor, who
  is under the supervision of the principal to make the report under
  this section.
         (d)  A person who is not a school employee but is employed by
  an entity that contracts with a district or school to use school
  property is not required to make a report under this section and may
  not be designated by the principal of a public primary or secondary
  school to make a report. A person who voluntarily makes a report
  under this section is immune from civil or criminal liability.
         (e)  A person who takes any action under this section is
  immune from civil or criminal liability or disciplinary action
  resulting from that action.
         (f)  Notwithstanding any other law, this section does not
  create a civil, criminal, or administrative cause of action or
  liability or create a standard of care, obligation, or duty that
  provides a basis for a cause of action for an act under this
  section.
         (g)  A school district and school personnel and school
  volunteers are immune from suit resulting from an act under this
  section, including an act under related policies and procedures.
         (h)  An act by school personnel or a school volunteer under
  this section, including an act under related policies and
  procedures, is the exercise of judgment or discretion on the part of
  the school personnel or school volunteer and is not considered to be
  a ministerial act for purposes of liability of the school district
  or the district's employees.
         SECTION 5.  Sections 37.218(a)(1) and (2), Education Code,
  are amended to read as follows:
               (1)  "Bullying" has the meaning assigned by Section
  37.0832 [25.0342].
               (2)  "Cyberbullying" has the meaning assigned by
  Section 37.0832 [means the use of any electronic communication
  device to engage in bullying or intimidation].
         SECTION 6.  Section 12.104(b), Education Code, is amended to
  read as follows:
         (b)  An open-enrollment charter school is subject to:
               (1)  a provision of this title establishing a criminal
  offense; and
               (2)  a prohibition, restriction, or requirement, as
  applicable, imposed by this title or a rule adopted under this
  title, relating to:
                     (A)  the Public Education Information Management
  System (PEIMS) to the extent necessary to monitor compliance with
  this subchapter as determined by the commissioner;
                     (B)  criminal history records under Subchapter C,
  Chapter 22;
                     (C)  reading instruments and accelerated reading
  instruction programs under Section 28.006;
                     (D)  accelerated instruction under Section
  28.0211;
                     (E)  high school graduation requirements under
  Section 28.025;
                     (F)  special education programs under Subchapter
  A, Chapter 29;
                     (G)  bilingual education under Subchapter B,
  Chapter 29;
                     (H)  prekindergarten programs under Subchapter E
  or E-1, Chapter 29;
                     (I)  extracurricular activities under Section
  33.081;
                     (J)  discipline management practices or behavior
  management techniques under Section 37.0021;
                     (K)  health and safety under Chapter 38;
                     (L)  public school accountability under
  Subchapters B, C, D, E, F, G, and J, Chapter 39;
                     (M)  the requirement under Section 21.006 to
  report an educator's misconduct;
                     (N)  intensive programs of instruction under
  Section 28.0213; [and]
                     (O)  the right of a school employee to report a
  crime, as provided by Section 37.148;
                     (P)  bullying prevention policies and procedures
  under Section 37.0832;
                     (Q)  the right of a school under Section 37.0052
  to place a student who has engaged in certain bullying behavior in a
  disciplinary alternative education program or to expel the student;
  and
                     (R)  the requirement under Section 37.0151 to
  report to local law enforcement certain conduct constituting
  harassment.
         SECTION 7.  Section 33.006, Education Code, is amended by
  amending Subsection (b) and adding Subsection (c) to read as
  follows:
         (b)  In addition to a school counselor's responsibility
  under Subsection (a), the school counselor shall:
               (1)  participate in planning, implementing, and
  evaluating a comprehensive developmental guidance program to serve
  all students and to address the special needs of students:
                     (A)  who are at risk of dropping out of school,
  becoming substance abusers, participating in gang activity, or
  committing suicide;
                     (B)  who are in need of modified instructional
  strategies; or
                     (C)  who are gifted and talented, with emphasis on
  identifying and serving gifted and talented students who are
  educationally disadvantaged;
               (2)  consult with a student's parent or guardian and
  make referrals as appropriate in consultation with the student's
  parent or guardian;
               (3)  consult with school staff, parents, and other
  community members to help them increase the effectiveness of
  student education and promote student success;
               (4)  coordinate people and resources in the school,
  home, and community;
               (5)  with the assistance of school staff, interpret
  standardized test results and other assessment data that help a
  student make educational and career plans; [and]
               (6)  deliver classroom guidance activities or serve as
  a consultant to teachers conducting lessons based on the school's
  guidance curriculum; and
               (7)  serve as an impartial, nonreporting conciliator
  for interpersonal conflicts and discord involving two or more
  students arising out of accusations of bullying under Section
  37.0832.
         (c)  Nothing in Subsection (b)(7) exempts a school counselor
  from any mandatory reporting requirements imposed by other
  provisions of law.
         SECTION 8.  Title 6, Civil Practice and Remedies Code, is
  amended by adding Chapter 129A to read as follows:
  CHAPTER 129A. RELIEF FOR CYBERBULLYING OF CHILD
         Sec. 129A.001.  DEFINITION. In this chapter,
  "cyberbullying" has the meaning assigned by Section 37.0832(a),
  Education Code.
         Sec. 129A.002.  INJUNCTIVE RELIEF. (a)  A recipient of
  cyberbullying behavior who is younger than 18 years of age at the
  time the cyberbullying occurs or a parent of or person standing in
  parental relation to the recipient may seek injunctive relief under
  this chapter against the individual who was cyberbullying the
  recipient or, if the individual is younger than 18 years of age,
  against a parent of or person standing in parental relation to the
  individual.
         (b)  A court may issue a temporary restraining order,
  temporary injunction, or permanent injunction appropriate under
  the circumstances to prevent any further cyberbullying, including
  an order or injunction:
               (1)  enjoining a defendant from engaging in
  cyberbullying; or
               (2)  compelling a defendant who is a parent of or person
  standing in parental relation to an individual who is younger than
  18 years of age to take reasonable actions to cause the individual
  to cease engaging in cyberbullying.
         (c)  A plaintiff in an action for injunctive relief brought
  under this section is entitled to a temporary restraining order on
  showing that the plaintiff is likely to succeed in establishing
  that the individual was cyberbullying the recipient. The plaintiff
  is not required to plead or prove that, before notice can be served
  and a hearing can be held, immediate and irreparable injury, loss,
  or damage is likely to result from past or future cyberbullying by
  the individual against the recipient.
         (d)  A plaintiff is entitled to a temporary or permanent
  injunction under this section on showing that the individual was
  cyberbullying the recipient.
         (e)  A court granting a temporary restraining order or
  temporary injunction under this section may, on motion of either
  party or sua sponte, order the preservation of any relevant
  electronic communication. The temporary restraining order or
  temporary injunction is not required to:
               (1)  define the injury or state why it is irreparable;
               (2)  state why the order was granted without notice; or
               (3)  include an order setting the cause for trial on the
  merits with respect to the ultimate relief requested.
         Sec. 129A.003.  PROMULGATION OF FORMS. (a)  The supreme
  court shall, as the court finds appropriate, promulgate forms for
  use as an application for initial injunctive relief by individuals
  representing themselves in suits involving cyberbullying and
  instructions for the proper use of each form or set of forms.
         (b)  The forms and instructions:
               (1)  must be written in language that is easily
  understood by the general public;
               (2)  shall be made readily available to the general
  public in the manner prescribed by the supreme court; and
               (3)  must be translated into the Spanish language.
         (c)  The Spanish language translation of a form must:
               (1)  state:
                     (A)  that the Spanish language translated form is
  to be used solely for the purpose of assisting in understanding the
  form and may not be submitted to the court; and
                     (B)  that the English language version of the form
  must be submitted to the court; or
               (2)  be incorporated into the English language version
  of the form in a manner that is understandable to both the court and
  members of the general public.
         (d)  Each form and its instructions must clearly and
  conspicuously state that the form is not a substitute for the advice
  of an attorney.
         (e)  The attorney general and the clerk of a court shall make
  the forms available free of charge.
         (f)  A court shall accept a form promulgated by the supreme
  court under this section unless the form has been completed in a
  manner that causes a substantive defect that cannot be cured.
         Sec. 129A.004.  INAPPLICABILITY. (a)  An action filed under
  this chapter may not be joined with an action filed under Title 1,
  4, or 5, Family Code.
         (b)  Chapter 27 does not apply to an action under this
  chapter.
         Sec. 129A.005.  CERTAIN CONDUCT EXCEPTED. This chapter does
  not apply to a claim brought against an interactive computer
  service, as defined by 47 U.S.C. Section 230, for cyberbullying.
         SECTION 9.  Section 42.07(b)(1), Penal Code, is amended to
  read as follows:
               (1)  "Electronic communication" means a transfer of
  signs, signals, writing, images, sounds, data, or intelligence of
  any nature transmitted in whole or in part by a wire, radio,
  electromagnetic, photoelectronic, or photo-optical system. The
  term includes:
                     (A)  a communication initiated through the use of
  [by] electronic mail, instant message, network call, a cellular or
  other type of telephone, a computer, a camera, text message, a
  social media platform or application, an Internet website, any
  other Internet-based communication tool, or facsimile machine; and
                     (B)  a communication made to a pager.
         SECTION 10.  Section 42.07(c), Penal Code, is amended to
  read as follows:
         (c)  An offense under this section is a Class B misdemeanor,
  except that the offense is a Class A misdemeanor if:
               (1)  the actor has previously been convicted under this
  section; or
               (2)  the offense was committed under Subsection (a)(7)
  against a child under 18 years of age with the intent that the
  child:
                     (A)  commit suicide; or
                     (B)  engage in conduct causing serious bodily
  injury to the child.
         SECTION 11.  Section 37.0832(b), Education Code, is
  repealed.
         SECTION 12.  Chapter 129A, Civil Practice and Remedies Code,
  as added by this Act, applies only to a cause of action that accrues
  on or after the effective date of this Act. A cause of action that
  accrues before the effective date of this Act is governed by the law
  in effect immediately before that date, and that law is continued in
  effect for that purpose.
         SECTION 13.  The change in law made by this Act applies only
  to an offense committed or conduct violating a penal law of this
  state that occurs on or after the effective date of this Act. An
  offense committed or conduct that occurs before the effective date
  of this Act is governed by the law in effect on the date the offense
  was committed or conduct occurred, and the former law is continued
  in effect for that purpose. For purposes of this section, an
  offense was committed or conduct violating a penal law of this state
  occurred before the effective date of this Act if any element of the
  offense or conduct occurred before that date.
         SECTION 14.  This Act takes effect September 1, 2017.