Bill Text: TX HB1408 | 2023-2024 | 88th Legislature | Introduced

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Bill Title: Relating to changing the elements of the offense of possession or promotion of lewd visual material depicting a child and to the prosecution and punishment of that offense and the severability of certain related penal laws.

Spectrum: Partisan Bill (Republican 5-0)

Status: (Introduced - Dead) 2023-03-03 - Referred to Criminal Jurisprudence [HB1408 Detail]

Download: Texas-2023-HB1408-Introduced.html

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88R7529 JRR-F
By: Schaefer H.B. No. 1408

A BILL TO BE ENTITLED
AN ACT
relating to changing the elements of the offense of possession or
promotion of lewd visual material depicting a child and to the
prosecution and punishment of that offense and the severability of
certain related penal laws.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 43.262, Penal Code, is amended by
amending Subsection (b) and adding Subsections (e), (f), (g), (h),
(i), and (j) to read as follows:
(b) A person commits an offense if the person knowingly
possesses, accesses with intent to view, or promotes visual
material that[:
[(1)] depicts the lewd exhibition of the genitals, [or]
pubic area, or buttocks of an unclothed, partially clothed, or
clothed child who is younger than 18 years of age at the time the
visual material was created[;
[(2) appeals to the prurient interest in sex; and
[(3) has no serious literary, artistic, political, or
scientific value].
(e) It is a defense to prosecution under this section that
the actor is a law enforcement officer or a school administrator
who:
(1) possessed or accessed the visual material in good
faith solely as a result of an allegation of a violation of this
section;
(2) allowed other law enforcement or school
administrative personnel to possess or access the visual material
only as appropriate based on the allegation described by
Subdivision (1); and
(3) took reasonable steps to destroy the visual
material within an appropriate period following the allegation
described by Subdivision (1).
(f) It is an affirmative defense to prosecution under this
section that the actor:
(1) was the spouse of the child at the time of the
offense; or
(2) is not more than two years older than the child.
(g) Notwithstanding Section 8.03, Penal Code, or any other
law, the following are not a defense to prosecution under this
section:
(1) ignorance or mistake of law;
(2) a defendant's belief that any of the requirements
of this section are unconstitutional or were unconstitutional;
(3) a defendant's reliance on any court decision,
including a decision of the United States Supreme Court, that has
been overruled on appeal or by a subsequent court, even if that
court decision had not been overruled when the defendant engaged in
the conduct that violates this section; or
(4) a defendant's reliance on any ruling or opinion
issued by a federal district court or the United States Court of
Appeals for the Fifth Circuit, which do not bind the state
judiciary.
(h) When it becomes necessary for the purposes of this
section to determine whether visual material depicts the lewd
exhibition of the genitals, pubic area, or buttocks of an
unclothed, partially clothed, or clothed child who is younger than
18 years of age at the time the visual material was created, the
court or jury may make this determination based on any of the
following factors:
(1) whether the focal point of the visual depiction is
the child's unclothed, partially clothed, or clothed genitals,
pubic area, or buttocks;
(2) whether the place or pose of the child depicted in
the visual material is sexually suggestive;
(3) whether the child is depicted in an unnatural pose
or inappropriate attire;
(4) whether the child is fully or partially clothed or
nude;
(5) whether the visual material suggests sexual
coyness or a willingness to engage in sexual activity;
(6) whether the visual material is intended or
designed to elicit a sexual response in the viewer; or
(7) any other factors authorized by law.
(i) When it becomes necessary for the purposes of this
section to determine whether a child depicted in the visual
material described by Subsection (b) was younger than 18 years of
age, the court or jury may make this determination by any of the
following methods:
(1) personal inspection of the child;
(2) inspection of the visual material;
(3) oral testimony by a witness to the creation of the
visual material as to the age of the child based on the child's
appearance at the time the visual material was created;
(4) expert medical testimony based on the appearance
of the child in the visual material; or
(5) any other method authorized by law or by the rules
of evidence at common law.
(j) Conduct under this section constitutes an offense
regardless of whether the actor knows the age of the child depicted
in the visual material at the time of the offense.
SECTION 2. Subchapter B, Chapter 43, Penal Code, is amended
by adding Section 43.28 to read as follows:
Sec. 43.28. SEVERABILITY. (a) Mindful of Leavitt v. Jane
L., 518 U.S. 137 (1996), in which in the context of determining the , 518 U.S. 137 (1996), in which in the context of determining the
severability of a state statute the United States Supreme Court
held that an explicit statement of legislative intent is
controlling, it is the intent of the legislature that every
provision, section, subsection, sentence, clause, phrase, or word
in this subchapter, and every application of the provisions in this
subchapter, are severable from each other.
(b) If any application of any statutory provision in this
subchapter to any person, group of persons, or circumstances is
found by a court to be invalid or unconstitutional, the remaining
applications of that statutory provision to all other persons and
circumstances shall be severed and may not be affected. All
constitutionally valid applications of this subchapter shall be
severed from any applications that a court finds to be
unconstitutional or otherwise invalid, leaving the valid and
constitutional applications in force, because it is the
legislature's intent and priority that the valid and constitutional
applications of each statutory provision be allowed to stand alone.
Even if a reviewing court finds a substantial number of a statute's
applications under this subchapter to be unconstitutional, judged
in relation to the statute's plainly legitimate sweep, the
applications that do not presently violate the Texas Constitution
or United States Constitution shall be severed from the remaining
applications and shall remain in force, and shall be treated as if
the legislature had enacted a statute limited to the persons, group
of persons, or circumstances for which the statute's application
does not violate the Texas Constitution or United States
Constitution.
(c) The legislature further declares that it would have
enacted this subchapter, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of this subchapter, irrespective of the fact that any
provision, section, subsection, sentence, clause, phrase, or word,
or applications of this subchapter, were to be declared
unconstitutional.
(d) If any statutory provision of this subchapter is found
by any court to be unconstitutionally vague, then the applications
of that statutory provision that do not present constitutional
vagueness problems shall be severed and remain in force.
(e) No court may decline to enforce the severability
requirements of Subsections (a), (b), (c), and (d) on the ground
that severance would rewrite the statute or involve the court in
legislative or lawmaking activity. A court that declines to
enforce or enjoins a state official from enforcing a statutory
provision does not rewrite a statute, as the statute continues to
contain the same words as before the court's decision. A judicial
injunction or declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting
enforcement that may subsequently be vacated by a later court if
that court has a different understanding of the requirements of the
Texas Constitution or United States Constitution;
(2) is not a formal amendment of the language in a
statute; and
(3) no more rewrites a statute than a decision by the
executive not to enforce a duly enacted statute in a limited and
defined set of circumstances.
(f) If any federal or state court declares unconstitutional
or enjoins the enforcement of a provision in this subchapter and
fails to enforce the severability requirements of Subsections (a),
(b), (c), (d), and (e), for any reason whatsoever, the attorney
general shall:
(1) adopt rules that enforce the requirements
described by this subchapter to the maximum possible extent while
avoiding the constitutional problems or other problems identified
by the federal or state court; and
(2) issue notice of those rules, not later than the
30th day after the date of the court ruling.
(g) If the attorney general fails to adopt the rules and
issue notice under Subsection (f), a person may petition for a writ
of mandamus requiring the attorney general to adopt the rules and
issue notice.
SECTION 3. 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
governed by the law in effect on the date 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 4. This Act takes effect September 1, 2023.