TX House Bill 1937 – 82nd Legislature Regular Session

Rich MitchellJune 1, 2011

82R20649 JRH-F
By: Simpson, Rodriguez, Menendez, Kolkhorst,	H.B. No. 1937
Chisum, et al.
Substitute the following for H.B. No. 1937:
By: Gallego	C.S.H.B. No. 1937



	A BILL TO BE ENTITLED
	AN ACT
	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.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	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
	unlawful;
	(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;
	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) 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”
	includes:
	(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
	law.
	(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
	Constitution.
	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
	Constitution.
	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.

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