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  H.B. No. 549
 
 
 
 
AN ACT
  relating to an affirmative defense to prosecution for certain sex
  offenses.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 21.11, Penal Code, is amended by
  amending Subsection (a) and adding Subsection (b-1) to read as
  follows:
         (a)  A person commits an offense if, with a child younger
  than 17 years of age [and not the person's spouse], whether the
  child is of the same or opposite sex, the person:
               (1)  engages in sexual contact with the child or causes
  the child to engage in sexual contact; or
               (2)  with intent to arouse or gratify the sexual desire
  of any person:
                     (A)  exposes the person's anus or any part of the
  person's genitals, knowing the child is present; or
                     (B)  causes the child to expose the child's anus
  or any part of the child's genitals.
         (b-1)  It is an affirmative defense to prosecution under this
  section that the actor was the spouse of the child at the time of
  the offense.
         SECTION 2.  Section 21.12, Penal Code, is amended by
  amending Subsection (a) and adding Subsection (b-1) to read as
  follows:
         (a)  An employee of a public or private primary or secondary
  school commits an offense if the employee engages in:
               (1)  sexual contact, sexual intercourse, or deviate
  sexual intercourse with a person who is enrolled in a public or
  private primary or secondary school at which the employee works
  [and who is not the employee's spouse]; or
               (2)  conduct described by Section 33.021, with a person
  described by Subdivision (1), regardless of the age of that person.
         (b-1)  It is an affirmative defense to prosecution under this
  section that the actor was the spouse of the enrolled person at the
  time of the offense.
         SECTION 3.  Section 22.011(c)(1), Penal Code, is amended to
  read as follows:
               (1)  "Child" means a person younger than 17 years of age
  [who is not the spouse of the actor].
         SECTION 4.  Section 22.011(e), Penal Code, is amended to
  read as follows:
         (e)  It is an affirmative defense to prosecution under
  Subsection (a)(2):
               (1)  that the actor was the spouse of the child at the
  time of the offense; or
               (2)  that:
                     (A) [(1)]  the actor was not more than three years
  older than the victim and at the time of the offense:
                           (i) [(A)]  was not required under Chapter
  62, Code of Criminal Procedure, to register for life as a sex
  offender; or
                           (ii) [(B)]  was not a person who under
  Chapter 62, Code of Criminal Procedure, had a reportable conviction
  or adjudication for an offense under this section; and
                     (B) [(2)]  the victim:
                           (i) [(A)]  was a child of 14 years of age or
  older; and
                           (ii) [(B)]  was not a person whom the actor
  was prohibited from marrying or purporting to marry or with whom the
  actor was prohibited from living under the appearance of being
  married under Section 25.01.
         SECTION 5.  Section 39.04, Penal Code, is amended by
  amending Subsection (f) and adding Subsection (h) to read as
  follows:
         (f)  An employee of the Texas Department of Criminal Justice,
  the Texas Youth Commission, or a local juvenile probation
  department commits an offense if the employee engages in sexual
  contact, sexual intercourse, or deviate sexual intercourse with an
  individual [who is not the employee's spouse and] who the employee
  knows is under the supervision of the department, commission, or
  probation department but not in the custody of the department,
  commission, or probation department.
         (h)  It is an affirmative defense to prosecution under
  Subsection (f) that the actor was the spouse of the individual at
  the time of the offense.
         SECTION 6.  The change in law made by this Act applies only
  to an offense committed on or after the effective date of this Act.
  An offense committed before the effective date of this Act is
  covered by the law in effect when the offense was committed, and the
  former law is continued in effect for that purpose. For purposes of
  this section, an offense was committed before the effective date of
  this Act if any element of the offense occurred before that date.
         SECTION 7.  This Act takes effect September 1, 2009.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 549 was passed by the House on April
  24, 2009, by the following vote:  Yeas 138, Nays 0, 1 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 549 was passed by the Senate on May
  18, 2009, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor