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  82S10081 JRH-F
  By: Simpson, et al. H.B. No. 41
  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.
         SECTION 1.  Section 39.03, Penal Code, is amended by
  amending Subsections (a) and (b) and adding Subsections (c-1),
  (c-2), and (c-3) 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
                     (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 without effective consent
  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)  causes physical contact with the other
  person when the actor knows or should reasonably believe that the
  other person will regard the contact as offensive or provocative.
         (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"
               (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
         (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
         (c-3)  For purposes of Subsection (a)(2), and
  notwithstanding Sections 1.07(a)(11) and (19), consent is
  effective only if, immediately before any search:
               (1)  the actor verbally describes:
                     (A)  the area of the other person to be searched;
                     (B)  the method to be used in the search; and
               (2)  the actor receives express consent for the search
  only from:
                     (A)  the other person; or
                     (B)  the parent or guardian of the other person.
         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 that are
  secured by 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
         SECTION 3.  This Act shall be construed, as a matter of state
  law, to be enforceable up to but no further than the maximum
  possible extent consistent with federal constitutional
  requirements, even if that construction is not readily apparent, as
  such constructions are authorized only to the extent necessary to
  save the statute from judicial invalidation.
         SECTION 4.  This Act takes effect on the 91st day after the
  last day of the legislative session.