By: Menéndez, et al.	S.B. No. 179
	(In the Senate - Filed November 14, 2016; January 25, 2017,
	read first time and referred to Committee on State Affairs;
	April 25, 2017, reported adversely, with favorable Committee
	Substitute by the following vote:  Yeas 6, Nays 1; April 25, 2017,
	sent to printer.)
Click here to see the committee vote
	COMMITTEE SUBSTITUTE FOR S.B. No. 179	By:  Creighton

	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 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, causing a student to
	experience substantial negative mental health effects, 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 shall establish a district-wide
	mental health plan to prevent and mediate bullying incidents and
	address suicide prevention.
	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 HARASSMENT; LIABILITY. (a)  The
	principal of a public primary or secondary school, or a person
	designated by the principal under Subsection (c), shall 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 22.081, Penal Code.
	(b)  A person who makes a report under this section shall
	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 BULLYING OF CHILD
	Sec. 129A.001.  DEFINITIONS. In this chapter:
	(1)  "Bullying communication" means unwanted
	electronic communication directed at a recipient by a communicator:
	(A)  that consists of multiple communications:
	(i)  with respect to which the communicator
	acts intentionally and with malice;
	(ii)  that:
	(a)  when taken together, were extreme
	and outrageous in light of the content, manner, time, place, and
	number of the communications; or
	(b)  were harassing and offensive and
	were made by the communicator acting in concert with two or more
	individuals the communicator knew to be making harassing and
	offensive communications directed at the recipient if the
	communications, when taken together, were extreme and outrageous in
	light of the manner, time, place, and number of communications; and
	(iii)  with respect to which the actions of
	the communicator caused or, if made in concert with other
	individuals as provided by Subparagraph (ii)(b), contributed to
	causing the recipient to suffer severe emotional distress; or
	(B)  in which the communicator in multiple
	communications, acting intentionally and with malice:
	(i)  urges or incites the recipient to
	commit or attempt to commit suicide;
	(ii)  threatens to make available to any
	third party, whether or not specified, by electronic communication
	or otherwise, intimate visual material depicting the recipient; or
	(iii)  threatens the recipient with bodily
	injury or bodily injury to a member of the recipient's family.
	(2)  "Claimant" means a party seeking to recover
	damages under this chapter, including a plaintiff,
	counterclaimant, cross-claimant, or third-party plaintiff, and
	includes a party seeking recovery of damages under this chapter on
	behalf of another person and the person on whose behalf the damages
	are sought.
	(3)  "Communicator" means a natural person who sends
	bullying communication.
	(4)  "Electronic communication" means a transfer of
	signs, signals, writing, images, sounds, data, or intelligence of
	any nature transmitted wholly or partly by a wire, radio,
	electromagnetic, photoelectronic, or photo-optical system
	including through the use of a cellular or other type of telephone,
	a facsimile machine, a computer, a camera, electronic mail, instant
	messaging, text messaging, a social media application, an Internet
	website, or any other Internet-based communication tool.
	(5)  "Intimate visual material" has the meaning
	assigned by Section 98B.001.
	(6)  "Recipient" means a person who receives bullying
	communication.
	Sec. 129A.002.  ACTIONABLE BULLYING. A person engages in
	actionable bullying for the purposes of this chapter if the person
	directs bullying communication toward a single recipient who, at
	the time of the communication, is younger than 18 years of age.
	Sec. 129A.003.  LIABILITY. A defendant is liable to a
	claimant under this chapter if the claimant shows that the
	defendant engaged in actionable bullying directed toward the
	recipient that proximately caused harm to the recipient.
	Sec. 129A.004.  DAMAGES. A claimant who prevails in a suit
	under this chapter may recover actual damages for all physical,
	mental, or emotional injury proximately caused by the actionable
	bullying that is the subject of the suit. The claimant may recover
	actual damages for mental anguish in an amount not to exceed $5,000
	in a suit brought under this chapter, regardless of the number of
	defendants named in the suit. Total damages under this section may
	not exceed $25,000 in a suit brought under this chapter, regardless
	of the number of defendants named in the suit.
	Sec. 129A.005.  PARENTAL RESPONSIBILITY. (a)  A parent of
	or person standing in parental relation to a child who engages in
	actionable bullying directed toward the recipient is liable to the
	claimant for the lesser of:
	(1)  damages recoverable by the claimant under Section
	129A.004; or
	(2)  $10,000.
	(b)  It is an affirmative defense to liability under this
	chapter that a parent or person standing in parental relation:
	(1)  took reasonable actions to supervise a
	communicator's use of the means employed by the communicator to
	direct bullying communication to a recipient; and
	(2)  either:
	(A)  did not know about the bullying
	communication; or
	(B)  if the parent or person standing in parental
	relation knew about the bullying communication, took reasonable
	actions to cause the communicator to cease sending bullying
	communications.
	Sec. 129A.006.  INJUNCTIVE RELIEF. (a)  A recipient of
	bullying communication who is younger than 18 years of age at the
	time the communication is received or a parent of or person standing
	in parental relation to the recipient may seek injunctive relief
	under this chapter against the individual who sent the bullying
	communication or, if the communicator is younger than 18 years of
	age, against a parent of or person standing in parental relation to
	the communicator.
	(b)  A court may issue a temporary restraining order,
	temporary injunction, or permanent injunction appropriate under
	the circumstances to prevent any further bullying communication,
	including an order or injunction:
	(1)  enjoining a defendant from sending bullying
	communication; or
	(2)  compelling a defendant who is a parent of or person
	standing in parental relation to a communicator who is younger than
	18 years of age to take reasonable actions to cause the communicator
	to cease sending bullying communication.
	(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 communicator sent bullying communication to 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
	bullying communication by the communicator to the recipient.
	(d)  A plaintiff is entitled to a temporary or permanent
	injunction under this section on showing that the communicator sent
	bullying communication to 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.007.  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 bullying communication
	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 form 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.008.  ATTORNEY'S FEES AND COSTS. In a proceeding
	under this chapter, the court may award to any claimant or defendant
	costs and reasonable and necessary attorney's fees as are equitable
	and just. The amount awarded to any party under this section for
	attorney's fees may not exceed $5,000.
	Sec. 129A.009.  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.010.  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 bullying
	communication.
	SECTION 9.  Chapter 22, Penal Code, is amended by adding
	Section 22.081 to read as follows:
	Sec. 22.081.  HARASSMENT OF CHILD TO CAUSE SUICIDE OR
	SERIOUS BODILY INJURY. (a)  In this section, "child" means a
	person younger than 18 years of age.
	(b)  A person commits an offense if the person directs
	multiple written, oral, or electronic communication toward a child
	in a manner that is reasonably likely to harass, annoy, alarm,
	abuse, torment, embarrass, or offend the child, with the intent
	that the child:
	(1)  commit suicide; or
	(2)  engage in conduct causing serious bodily injury to
	the child.
	(c)  An offense under this section is a Class B misdemeanor,
	except that the offense is a Class A misdemeanor if:
	(1)  it is shown on the trial of the offense that the
	actor:
	(A)  acted in concert with another person to
	engage in the conduct described in this section with respect to the
	same victim; or
	(B)  has been previously convicted of an offense
	under this section; or
	(2)  the actor's conduct causes the child to commit
	suicide or causes the child to attempt to commit suicide and that
	attempt results in serious bodily injury to the child.
	(d)  For the purposes of Subsection (c)(1)(B), a defendant
	has been previously convicted under this section if the defendant
	was adjudged guilty of the offense or entered a plea of guilty or
	nolo contendere in return for a grant of deferred adjudication
	community supervision, regardless of whether the sentence for the
	offense was ever imposed or whether the sentence was probated and
	the defendant was subsequently discharged from deferred
	adjudication community supervision.
	(e)  A person who is subject to prosecution under both this
	section and another law may be prosecuted under either or both this
	section and the other law.
	SECTION 10.  Section 37.0832(b), Education Code, is
	repealed.
	SECTION 11.  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 12.  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 13.  This Act takes effect September 1, 2017.
	* * * * *