|
|
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. |