By: Minjarez H.B. No. 306       A BILL TO BE ENTITLED   AN ACT   relating to student harassment, bullying, cyberbullying, injury to   or death of a minor; creating a criminal offense.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  This Act shall be known as David's Law.          SECTION 2.  Section 37.0832, Education Code, is amended by   amending Subsections (a), (c), (d), and (e) and adding Subsection   (a-1) to read as follows:          (a)  In this section:                (1)  "Bullying":                      (A)  [, "bullying"] means a single significant act   or a pattern of acts by one or more students directed at another   student that exploits an imbalance of power and involves[, subject   to Subsection (b),] engaging in written or verbal expression,   expression through electronic means, or physical conduct, that   satisfies the applicability requirements provided by Subsection   (a-1), [that occurs on school property, at a school-sponsored or   school-related activity, or in a vehicle operated by the district]   and that:                            (i) [(1)]  has the effect or will have the   effect of physically harming a student, causing a student to   experience substantial negative mental health effects, damaging a   student's property, or placing a student in reasonable fear of harm   to the student's person or of damage to the student's property; [or]                            (ii) [(2)]  is sufficiently severe,   persistent, and pervasive enough that the action or threat creates   an intimidating, threatening, or abusive educational environment   for a student;                            (iii)  materially and substantially   disrupts the educational process or the orderly operation of a   classroom or school; or                            (iv)  infringes on the rights of the victim   at school; and                      (B)  includes cyberbullying.                (2)  "Cyberbullying" means bullying that is done   through the use of electronic communication, including through the   use of a cellular or other type of telephone, a computer, a pager, a   camera, electronic mail, instant messaging, text messaging, a   social media application, Internet website, or other   Internet-based communication tool.          (a-1)  This section applies to:                (1)  bullying that occurs on or is delivered to school   property or to the site of a school-sponsored or school-related   activity on or off school property;                (2)  bullying that occurs on a publicly or privately   owned school bus or van being used for transportation of students to   or from school or a school-sponsored or school-related activity;   and                (3)  cyberbullying that occurs off school property or   outside of a school-sponsored or school-related activity if the   cyberbullying:                      (A)  interferes with a student's educational   opportunities; or                      (B)  substantially disrupts the orderly operation   of a classroom, school, or school-sponsored or school-related   activity.          (c)  The board of trustees of each school district and the   governing body of each open-enrollment charter school or private   school shall adopt a policy, including any necessary procedures,   concerning bullying that:                (1)  prohibits the bullying and cyberbullying of a   student;                (2)  prohibits retaliation against any person,   including a victim, a witness, or another person, who in good faith   provides information concerning an incident of bullying;                (3)  establishes a procedure for providing notice of an   incident of bullying to a parent or guardian of the victim and a   parent or guardian of the bully not later than the next school day   [within a reasonable amount of time] after the incident is   reported;                (4)  establishes the actions a student should take to   obtain assistance and intervention in response to bullying;                (5)  sets out the available counseling options for a   student who is a victim of or a witness to bullying or who engages in   bullying;                (6)  establishes procedures for reporting an incident   of bullying, including procedures for a student, parent, teacher,   or administrator to anonymously report an incident of bullying,   investigating a reported incident of bullying, and determining   whether the reported incident of bullying occurred;                (7)  prohibits the imposition of a disciplinary measure   on a student who, after an investigation, is found to be a victim of   bullying, on the basis of that student's use of reasonable   self-defense in response to the bullying; and                (8)  requires that discipline for bullying of a student   with disabilities comply with applicable requirements under   federal law, including the Individuals with Disabilities Education   Act (20 U.S.C. Section 1400 et seq.).          (d)  The policy and any necessary procedures adopted under   Subsection (c) must be included:                (1)  annually, in any [the] student and employee   [school district] handbooks; and                (2)  in the district improvement plan under Section   11.252.          (e)  The procedure for reporting bullying established under   Subsection (c) must be posted on the district's or school's Internet   website to the extent practicable.          SECTION 3.  Subchapter A, Chapter 37, Education Code, is   amended by adding Section 37.0052 to read as follows:          Sec. 37.0052.  PLACEMENT OR EXPULSION OF STUDENTS WHO HAVE   ENGAGED IN CERTAIN BULLYING BEHAVIOR. (a)  In this section:                (1)  "Bullying" has the meaning assigned by Section   37.0832.                (2)  "Intimate visual material" has the meaning   assigned by Section 98B.001, Civil Practice and Remedies Code.          (b)  A student may be removed from class and placed in a   disciplinary alternative education program as provided by Section   37.008 or expelled if the student:                (1)  engages in bullying that encourages a minor to   commit or attempt to commit suicide;                (2)  incites violence against a minor through group   bullying; or                (3)  releases or threatens to release intimate visual   material of a minor.          SECTION 4.  Subchapter A, Chapter 37, Education Code, is   amended by adding Section 37.0151 to read as follows:          Sec. 37.0151.  REPORT TO LOCAL LAW ENFORCEMENT REGARDING   CERTAIN CONDUCT CONSTITUTING ASSAULT OR HARASSMENT; LIABILITY. (a)     The principal of a public or private primary or secondary school, or   a person designated by the principal under Subsection (c), shall   make a report to any school district police department and the   police department of the municipality in which the school is   located or, if the school is not in a municipality, the sheriff of   the county in which the school is located if the principal has   reasonable grounds to believe that a student engaged in conduct   that constitutes an offense under Section 22.01 or 42.07(a)(7),   Penal Code.          (b)  A person who makes a report under this section shall   include the name and address of each student the person believes may   have participated in the conduct.          (c)  The principal of a public or private primary or   secondary school may designate a school employee, other than a   school counselor, who is under the supervision of the principal to   make the report under this section.          (d)  A person is not liable in civil damages for making a   report in good faith under this section.          SECTION 5.  Sections 37.218(a)(1) and (2), Education Code,   are amended to read as follows:                (1)  "Bullying" has the meaning assigned by Section   37.0832 [25.0342].                (2)  "Cyberbullying" has the meaning assigned by   Section 37.0832 [means the use of any electronic communication   device to engage in bullying or intimidation].          SECTION 6.  Section 33.006(b), Education Code, is amended to   read as follows:          (b)  In addition to a school counselor's responsibility   under Subsection (a), the school counselor shall:                (1)  participate in planning, implementing, and   evaluating a comprehensive developmental guidance program to serve   all students and to address the special needs of students:                      (A)  who are at risk of dropping out of school,   becoming substance abusers, participating in gang activity, or   committing suicide;                      (B)  who are in need of modified instructional   strategies; or                      (C)  who are gifted and talented, with emphasis on   identifying and serving gifted and talented students who are   educationally disadvantaged;                (2)  consult with a student's parent or guardian and   make referrals as appropriate in consultation with the student's   parent or guardian;                (3)  consult with school staff, parents, and other   community members to help them increase the effectiveness of   student education and promote student success;                (4)  coordinate people and resources in the school,   home, and community;                (5)  with the assistance of school staff, interpret   standardized test results and other assessment data that help a   student make educational and career plans; [and]                (6)  deliver classroom guidance activities or serve as   a consultant to teachers conducting lessons based on the school's   guidance curriculum; and                (7)  serve as an impartial mediator for interpersonal   conflicts involving two or more students, including accusations of   bullying or cyberbullying under Section 37.0832.          SECTION 7.  Chapter 18, Civil Practice and Remedies Code, is   amended by adding Subchapter E to read as follows:   SUBCHAPTER E.  SUBPOENAS          Sec. 18.101.  PRE-SUIT SUBPOENAS FOR CERTAIN CLAIMS   INVOLVING MINORS.  (a)  The supreme court shall adopt rules of civil   procedure providing for the issuance of a pre-suit subpoena to:                (1)  investigate a potential claim involving an injury   to or death of a minor; or                (2)  perpetuate or obtain evidence or testimony from   any person for use in an anticipated action involving an injury to   or death of a minor.          (b)  The rules must:                (1)  allow a party to request a subpoena to compel an   oral or written deposition, the production of electronic or   magnetic data, or the production of documents or tangible things;   and                (2)  require that a responding party provide any   electronic or magnetic data or documentary or tangible evidence to   the court under seal for the court to determine, after notice,   hearing, and an in camera inspection, if the evidence should be   released to the requesting party.          SECTION 8.  Title 4, Civil Practice and Remedies Code, is   amended by adding Chapter 100B to read as follows:   CHAPTER 100B.  LIABILITY FOR CERTAIN BULLYING OF CHILD          Sec. 100B.001.  DEFINITIONS. In this chapter:                (1)  "Bullying communication" means written or oral   expression, expression by means of electronic communication, or   non-verbal expression:                      (A)  that consists of multiple communications:                            (i)  with respect to which the individual   making the communication acts intentionally and with malice;                            (ii)  where the communications:                                  (a)  when taken together, were extreme   and outrageous in light of the content, manner, time, place, and   number of such communications; or                                  (b)  were harassing and offensive, and   the individual making the communication acts was acting in concert   with two or more other persons whose communications directed at the   recipient the individual making the communication acts knew to be   harassing and offensive, if such communications by the individual   making the communication acts and such other persons, when taken   together, were extreme and outrageous in light of the manner, time,   place, and number of such communications; and                            (iii)  with respect to which the actions of   the individual making the communication caused, or if made in   concert with other persons as provided in clause (1)(A)(ii)(b) of   this Section, contributed to causing, the recipient to suffer   severe emotional distress; or                      (B)  in which the individual making the   communication:                            (i)  urges or incites the recipient to   commit or attempt to commit suicide;                            (ii)  threatens to make available to any   third party, whether or not specified, by electronic communication   or otherwise, intimate visual material of or depicting the   recipient of the bullying communication; or                            (iii)  threatens bodily injury to the   recipient or a member of the recipient's family.                (2)  "Claimant" means a party seeking to recover   damages under this chapter, including a plaintiff,   counterclaimant, cross-claimant, or third-party plaintiff, and   includes a party seeking recovery of damages under this chapter on   behalf of another person and the person on whose behalf the damages   are sought.                (3)  "Defendant" includes any party from whom a   claimant seeks recovery of damages under this chapter, and includes   a person from whom a claimant seeks recovery under Section 100B.005   and the child who engaged in the actionable bullying that is the   subject of the action in which recovery is sought.                (4)  "Electronic communication" means a transfer of   signs, signals, writing, images, sounds, data, or intelligence of   any nature transmitted wholly or partly by a wire, radio,   electromagnetic, photoelectronic, or photo-optical system   including through the use of a cellular or other type of telephone,   facsimile machine, a computer, a pager, a camera, electronic mail,   instant messaging, text messaging, a social media application,   Internet website, or other Internet-based communication tool.                (5)  "Family" has the meaning assigned by Section   71.003, Family Code.                (6)  "Interactive service" means an information   service, system, wireless telephone and text message service, or   access software provider that provides or enables electronic   communication through computer or wireless telephone access by   multiple users to a computer server or wireless telephone network,   including a system that provides access to the Internet or wireless   telephones.                (7)  "Intimate visual material" has the meaning   assigned by Section 98B.001, Civil Practice and Remedies Code.          Sec. 100B.002.  ACTIONABLE BULLYING.  A person engages in   actionable bullying for the purposes of this chapter if the person   directs bullying communication toward a single recipient who, at   the time of the bullying communication, is younger than 18 years of   age.          Sec. 100B.003.  LIABILITY.  A defendant is liable to a   claimant as provided by this chapter if the claimant shows that the   defendant engaged in actionable bullying directed toward the   claimant.          Sec. 100B.004.  DAMAGES.  (a)  A claimant who prevails in a   suit under this chapter may recover actual damages for all   physical, mental, or emotional injury caused by, resulting from, or   arising out of the actionable bullying that is the subject of the   suit.  The claimant may recover actual damages for mental anguish   even if an injury other than mental anguish is not shown.          (b)  Except as provided by Subsection (c), in addition to   damages awarded under Subsection (a), a claimant who prevails in a   suit under this chapter may recover:                (1)  exemplary damages; and                (2)  court costs and reasonable attorney's fees.          (c)  Instead of recovering exemplary damages under   Subsection (b), a claimant who prevails in a suit under this chapter   may elect to treble the amount that would otherwise be awarded under   Subsection (a), not to exceed $75,000.00 under this subsection (c)   per actionable claim, if the claimant shows that:                (1)  the defendant used an interactive service to   transfer electronic communication to the claimant that constituted   actionable bullying; and                (2)  the defendant knew that two or more other persons   were using that interactive service to transfer electronic   communication that constituted actionable bullying as to the   claimant within 24 hours of each transfer by the defendant   described by Subdivision (1).          Sec. 100B.005.  PARENTAL RESPONSIBILITY. A parent or other   person who has the duty of control and reasonable discipline of a   child who engages in actionable bullying directed toward the   claimant is liable to the claimant for:                (1)  the lesser of:                      (A)  damages recoverable by the claimant under   Section 100B.004, including exemplary damages or multiplied   damages, as applicable; or                      (B)  $50,000; and                (2)  court costs and reasonable attorney's fees.          Sec. 100B.006.  INJUNCTIVE RELIEF. If a defendant is found   liable under this chapter, a court may order any injunctive relief   sought by the claimant that the court determines is appropriate   under the circumstances.          Sec. 100B.007.  DEFENSE.  It is a defense to liability under   this chapter that the defendant was engaged in conduct that   constituted a constitutionally protected exercise of the   defendant's rights to free speech.          Sec. 100B.008.  CAUSE OF ACTION CUMULATIVE.  The cause of   action created by this chapter is cumulative of any other remedy   provided by common law or statute.          SECTION 9.  Chapter 22, Penal Code, is amended by adding   Section 22.081 to read as follows:          Sec. 22.081.  INDUCING SUICIDE OR ATTEMPTED SUICIDE OF A   MINOR BY NONPHYSICAL BULLYING.          Sec 22.081.  DEFINITIONS.  In this section:                (1)  "Electronic communication" has the meaning   assigned by Section 42.07(b)(1), Penal Code.                (2)  "Intimate parts," "sexual conduct," and "visual   material" have the meanings assigned by Section 21.16, Penal Code.                (3)  "Intimate visual material" means visual material   that depicts a person:                      (A)  with the person's intimate parts exposed; or                      (B)  engaged in sexual conduct.                (4)  "Suicide baiting" means a communication by a   person directed at another by written or verbal expression,   expression through an electronic communication, or non-verbal   expression, that urges or incites the other to commit or attempt to   commit suicide.          (a)  A person commits an offense if such person intentionally   and with malice directs one or more communications toward a child   younger than 18 years of age by written or oral expression,   expression through electronic communications, or nonverbal   expression, and such communication was, or such communications when   taken together were, harassing, extreme and outrageous in light of   the content, number, manner, time, and place of such communication   or communications; and                (1)  the actor's conduct causes the suicide, or the   attempted suicide of such child that results in serious bodily   injury; or                (2)  the actor was acting in concert with two or more   other persons whose communications directed at such child the actor   knew to be harassing, extreme and outrageous in light of the   content, number, manner, time, and place of such other   communications, and the cumulative effect of such communication or   communications by the actor and such communications by such other   persons was to cause the suicide of such child, or the attempted   suicide of such child that results in serious bodily injury.          (b)  A person commits an offense if such person intentionally   and with malice directs one or more communications toward a child   younger than 18 years of age by written or oral expression,   expression through electronic communications, or non-verbal   expression, and in such communication or communications the person   threatened to make available to any third party, whether or not   specified, by electronic communication, or otherwise, intimate   visual material of or depicting such child, and such conduct by the   actor causes the suicide of such child, or the attempted suicide of   such child that results in serious bodily injury.          (c)  An offense under this section is a Class A misdemeanor.          SECTION 10.  Section 42.07(b)(1), Penal Code, is amended to   read as follows:                (1)  "Electronic communication" means a transfer of   signs, signals, writing, images, sounds, data, or intelligence of   any nature transmitted in whole or in part by a wire, radio,   electromagnetic, photoelectronic, or photo-optical system.  The   term includes:                      (A)  a communication initiated by electronic   mail, instant message, Internet website, social media application,   network call, [or] facsimile machine, or other Internet-based   communication tool; and                      (B)  a communication made to a pager.          SECTION 11.  Section 37.0832(b), Education Code, is   repealed.          SECTION 12.  Chapter 100B, Civil Practice and Remedies Code,   as added by this Act, applies only with respect to bullying   communications engaged in on or after the effective date of this   Act.          SECTION 13.  The change in law made by this Act applies only   to an offense committed or conduct violating a penal law of this   state that occurs on or after the effective date of this Act.  An   offense committed or conduct that occurs before the effective date   of this Act is governed by the law in effect on the date the offense   was committed or conduct occurred, and the former law is continued   in effect for that purpose.  For purposes of this section, an   offense was committed or conduct violating a penal law of this state   occurred before the effective date of this Act if any element of the   offense or conduct occurred before that date.          SECTION 14.  This Act takes effect September 1, 2017.