Bill Text: TX SB1615 | 2011-2012 | 82nd Legislature | Introduced
Bill Title: Relating to the creation of the offense of electronic transmission of certain visual material depicting a minor.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-03-23 - Referred to Criminal Justice [SB1615 Detail]
Download: Texas-2011-SB1615-Introduced.html
82R8321 SJM-D | ||
By: West | S.B. No. 1615 |
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relating to the creation of the offense of electronic transmission | ||
of certain visual material depicting a minor. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subchapter B, Chapter 43, Penal Code, is amended | ||
by adding Section 43.261 to read as follows: | ||
Sec. 43.261. ELECTRONIC TRANSMISSION OF CERTAIN VISUAL | ||
MATERIAL DEPICTING A MINOR. (a) In this section: | ||
(1) "Minor" means a person younger than 18 years of | ||
age. | ||
(2) "Produce" with respect to visual material includes | ||
any conduct that directly contributes to the creation or | ||
manufacture of the material. | ||
(3) "Promote" has the meaning assigned by Section | ||
43.25. | ||
(4) "Sexual conduct" has the meaning assigned by | ||
Section 43.25. | ||
(5) "Social networking website" means an Internet | ||
website that permits persons to become registered users for the | ||
purpose of establishing personal relationships with other users | ||
through direct or real-time communication with other users or | ||
through the creation of web pages or profiles available to the | ||
public or to other users. The term does not include an e-mail | ||
program or a message board program. | ||
(6) "Visual material" means: | ||
(A) any film, picture, photograph, videotape, | ||
negative, slide, or digital image or recording, or any other | ||
similar visual depiction or reproduction that contains or | ||
incorporates in any manner any film, picture, photograph, | ||
videotape, negative, slide, or digital image or recording; or | ||
(B) any disk, diskette, computer, video screen, | ||
telecommunications device, or other physical medium that allows an | ||
image to be displayed or electronically stored, converted, or | ||
transmitted by any method, including through the use of a telephone | ||
line, cable, satellite, or analog or digital electronic device. | ||
(b) A person who is a minor commits an offense if the person | ||
intentionally or knowingly: | ||
(1) by electronic means promotes to another minor | ||
visual material depicting a minor, including the actor, engaging in | ||
sexual conduct, if the actor produced the visual material or knows | ||
that another minor produced the visual material; | ||
(2) on a social networking website promotes visual | ||
material depicting a minor, including the actor, engaging in sexual | ||
conduct, if the actor produced the visual material or knows that | ||
another minor produced the visual material; or | ||
(3) possesses in an electronic format visual material | ||
depicting another minor engaging in sexual conduct, if the actor | ||
produced the visual material or knows that another minor produced | ||
the visual material. | ||
(c) It is an affirmative defense to prosecution under this | ||
section that: | ||
(1) the actor was the spouse of the minor at the time | ||
of the offense; | ||
(2) the conduct was for a bona fide educational, | ||
medical, psychological, psychiatric, judicial, law enforcement, or | ||
legislative purpose; | ||
(3) the visual material depicted only the actor and | ||
was transmitted only to one other person who is not more than four | ||
years older or younger than the actor; or | ||
(4) the visual material: | ||
(A) depicted: | ||
(i) only one person who is not more than | ||
four years older or younger than the actor; or | ||
(ii) the actor and only one other person who | ||
is described by Subparagraph (i); and | ||
(B) was transmitted only to a person depicted in | ||
the material. | ||
(d) It is an affirmative defense to prosecution under | ||
Subsection (b)(3) that the defendant: | ||
(1) did not produce the visual material; | ||
(2) possessed the visual material only after receiving | ||
the material from another minor; and | ||
(3) not later than 48 hours after receiving the visual | ||
material from the other minor: | ||
(A) reported receipt of the material to a law | ||
enforcement agency; or | ||
(B) took reasonable steps to destroy or eliminate | ||
the visual material. | ||
(e) An offense under this section is a Class C misdemeanor, | ||
except that the offense is: | ||
(1) a Class B misdemeanor if it is shown on the trial | ||
of the offense that the defendant has, one time, been previously | ||
convicted of an offense under this section or adjudicated to have | ||
engaged in conduct that violates this section; and | ||
(2) a Class A misdemeanor if it is shown on the trial | ||
of the offense that the defendant has, two or more times, been | ||
previously convicted of an offense under this section or | ||
adjudicated to have engaged in conduct that violates this section. | ||
(f) A punishment prescribed for an offense under this | ||
section is increased to the punishment prescribed for the next | ||
higher category of offense if it is shown on the trial of the | ||
offense that the actor was more than four years older than the | ||
child. | ||
(g) If the actor was younger than 18 years of age at the time | ||
of the commission of the offense, the punishment for an offense | ||
under this section may be increased under Subsection (e) or (f), but | ||
may not be increased under both of those subsections. | ||
(h) If conduct that constitutes an offense under this | ||
section also constitutes an offense under another section of this | ||
code or any other law, the defendant may be prosecuted only under | ||
this section. | ||
SECTION 2. The heading to Chapter 6, Code of Criminal | ||
Procedure, is amended to read as follows: | ||
CHAPTER 6. PREVENTING OFFENSES BY THE ACT OF MAGISTRATES | ||
AND OTHER OFFICERS; EDUCATION CONCERNING | ||
CONSEQUENCES OF CERTAIN OFFENSES | ||
SECTION 3. Chapter 6, Code of Criminal Procedure, is | ||
amended by adding Article 6.09 to read as follows: | ||
Art. 6.09. EDUCATIONAL PROGRAMS CONCERNING CERTAIN | ||
OFFENSES COMMITTED BY MINORS; MANDATORY COURT ATTENDANCE. (a) In | ||
this article, "parent" means a natural or adoptive parent, managing | ||
or possessory conservator, or legal guardian. The term does not | ||
include a parent whose parental rights have been terminated. | ||
(b) On a finding by a county court that a defendant has | ||
committed an offense under Section 43.261, Penal Code, the court | ||
may enter an order requiring: | ||
(1) the defendant to attend and successfully complete | ||
an educational program designed to address: | ||
(A) the possible psychological and social | ||
consequences of engaging in conduct in violation of Section 43.261, | ||
Penal Code, including negative effects on relationships and the | ||
loss of educational and employment opportunities; and | ||
(B) the possible legal consequences, including | ||
criminal penalties, of engaging in subsequent conduct in violation | ||
of Section 43.261, Penal Code; or | ||
(2) if the defendant has not been emancipated by | ||
marriage or court order, the defendant's parent to attend and | ||
successfully complete an educational program described by | ||
Subdivision (1). | ||
(c) A court that enters an order under Subsection (b) shall | ||
require the defendant or the defendant's parent to pay the cost of | ||
attending an educational program under Subsection (b) if the court | ||
determines that the defendant or the defendant's parent is | ||
financially able to make payment. | ||
SECTION 4. Article 42.12, Code of Criminal Procedure, is | ||
amended by adding Section 13H to read as follows: | ||
Sec. 13H. DEFENDANTS PLACED ON COMMUNITY SUPERVISION FOR | ||
ELECTRONIC TRANSMISSION OF CERTAIN VISUAL MATERIAL. (a) In this | ||
section, "parent" means a natural or adoptive parent, managing or | ||
possessory conservator, or legal guardian. The term does not | ||
include a parent whose parental rights have been terminated. | ||
(b) If a judge grants community supervision to a defendant | ||
convicted of an offense under Section 43.261, Penal Code, the judge | ||
may require as a condition of community supervision that the | ||
defendant attend and successfully complete an educational program | ||
designed to address: | ||
(1) the possible psychological and social | ||
consequences of committing an offense under Section 43.261, Penal | ||
Code, including negative effects on relationships and the loss of | ||
educational and employment opportunities; and | ||
(2) the possible legal consequences, including | ||
criminal penalties, of committing a subsequent offense under | ||
Section 43.261, Penal Code. | ||
(c) The court shall require the defendant or the defendant's | ||
parent to pay the cost of attending an educational program under | ||
Subsection (b) if the court determines that the defendant or the | ||
defendant's parent is financially able to make payment. | ||
SECTION 5. Article 45.0216, Code of Criminal Procedure, is | ||
amended by amending Subsections (b), (d), and (f) and adding | ||
Subsection (f-1) to read as follows: | ||
(b) A person convicted of not more than one offense | ||
described by Section 8.07(a)(4) or (5) or 43.261, Penal Code, while | ||
the person was a child may, on or after the person's 17th birthday, | ||
apply to the court in which the person [ |
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the conviction expunged as provided by this article. | ||
(d) The request must contain the person's statement that the | ||
person was not convicted while the person was a child of any | ||
additional offense as described by Subsection (f)(1) or (2), as | ||
applicable [ |
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(f) The [ |
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order the conviction, together with all complaints, verdicts, | ||
sentences, and prosecutorial and law enforcement records, and any | ||
other documents relating to the offense, expunged from the person's | ||
record if the court finds that: | ||
(1) for a person applying for the expunction of a | ||
conviction for an offense described by Section 8.07(a)(4) or (5), | ||
Penal Code, the person was not convicted of any other offense | ||
described by Section 8.07(a)(4) or (5), Penal Code, while the | ||
person was a child; and | ||
(2) for a person applying for the expunction of a | ||
conviction for an offense described by Section 43.261, Penal Code, | ||
the person was not convicted of any other offense described by | ||
Section 43.261, Penal Code. | ||
(f-1) After entry of an [ |
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the person is released from all disabilities resulting from the | ||
conviction and the conviction may not be shown or made known for any | ||
purpose. | ||
SECTION 6. Subchapter B, Chapter 45, Code of Criminal | ||
Procedure, is amended by adding Article 45.061 to read as follows: | ||
Art. 45.061. PROCEEDINGS CONCERNING ELECTRONIC | ||
TRANSMISSION OF CERTAIN VISUAL MATERIAL DEPICTING A MINOR. (a) In | ||
this article, "parent" means a natural or adoptive parent, managing | ||
or possessory conservator, or legal guardian. The term does not | ||
include a parent whose parental rights have been terminated. | ||
(b) On a finding by a justice or municipal court that a | ||
defendant has committed an offense under Section 43.261, Penal | ||
Code, punishable as a Class C misdemeanor, the court may enter an | ||
order requiring: | ||
(1) the defendant to attend and successfully complete | ||
an educational program designed to address: | ||
(A) the possible psychological and social | ||
consequences of engaging in conduct in violation of Section 43.261, | ||
Penal Code, including negative effects on relationships and the | ||
loss of educational and employment opportunities; and | ||
(B) the possible legal consequences, including | ||
criminal penalties, of engaging in subsequent conduct in violation | ||
of Section 43.261, Penal Code; or | ||
(2) if the defendant has not been emancipated by | ||
marriage or court order, the defendant's parent to attend and | ||
successfully complete an educational program described by | ||
Subdivision (1). | ||
(c) A court that enters an order under Subsection (b) may | ||
require the defendant or the defendant's parent to pay the cost of | ||
attending an educational program under Subsection (b) if the court | ||
determines that the defendant or the defendant's parent is | ||
financially able to make payment. | ||
SECTION 7. Section 51.13, Family Code, is amended by | ||
amending Subsection (a) and adding Subsection (e) to read as | ||
follows: | ||
(a) Except as provided by Subsections [ |
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(e), an order of adjudication or disposition in a proceeding under | ||
this title is not a conviction of crime. Except as provided by | ||
Chapter 841, Health and Safety Code, an order of adjudication or | ||
disposition does not impose any civil disability ordinarily | ||
resulting from a conviction or operate to disqualify the child in | ||
any civil service application or appointment. | ||
(e) An adjudication for conduct engaged in by a child in | ||
violation of Section 43.261, Penal Code, is a conviction only for | ||
the purposes of Section 43.261(e), Penal Code. | ||
SECTION 8. Chapter 54, Family Code, is amended by adding | ||
Section 54.0402 to read as follows: | ||
Sec. 54.0402. CHILD PLACED ON PROBATION FOR ELECTRONIC | ||
TRANSMISSION OF CERTAIN VISUAL MATERIAL. (a) If a court or jury | ||
places on probation under Section 54.04(d) a child adjudicated as | ||
having engaged in conduct in violation of Section 43.261, Penal | ||
Code, in addition to other conditions of probation, the court may | ||
enter an order requiring: | ||
(1) the child to attend and successfully complete an | ||
educational program designed to address: | ||
(A) the possible psychological and social | ||
consequences of engaging in conduct in violation of Section 43.261, | ||
Penal Code, including negative effects on relationships and the | ||
loss of educational and employment opportunities; and | ||
(B) the possible legal consequences, including | ||
criminal penalties, of engaging in subsequent conduct in violation | ||
of Section 43.261, Penal Code; or | ||
(2) if the child has not been emancipated by marriage | ||
or court order, the child's parent to attend and successfully | ||
complete an educational program described by Subdivision (1). | ||
(b) A court that enters an order under Subsection (a) may | ||
require the child or the child's parent to pay the cost of attending | ||
an educational program under Subsection (a) if the court determines | ||
that the child or the child's parent is financially able to make | ||
payment. | ||
SECTION 9. Section 54.041, Family Code, is amended by | ||
adding Subsection (i) to read as follows: | ||
(i) If a child is found to have engaged in conduct in | ||
violation of Section 43.261, Penal Code, the court may order the | ||
child's parent or guardian to attend a program described by Section | ||
54.0402(a)(1). | ||
SECTION 10. This Act takes effect September 1, 2011. |