82R20649 JRH-F
  By: Simpson, Rodriguez, Menendez, Kolkhorst, H.B. No. 1937
      Chisum, et al.
  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) and
  (c-2) 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 for the purpose of granting
  access to a publicly accessible building or form of transportation;
                     (B)  intentionally, knowingly, or recklessly:
                           (i)  touches the anus, sexual organ,
  buttocks, or breast of the other person, including touching through
  clothing; or
                           (ii)  touches the other person in a manner
  that would be offensive to a reasonable person.
         (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
         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 secured by the
  Ninth Amendment to 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 takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution. If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2011.