By: Menéndez, et al.  S.B. No. 179          (In the Senate - Filed November 14, 2016; January 25, 2017,   read first time and referred to Committee on State Affairs;   April 25, 2017, reported adversely, with favorable Committee   Substitute by the following vote:  Yeas 6, Nays 1; April 25, 2017,   sent to printer.)Click here to see the committee vote    COMMITTEE SUBSTITUTE FOR S.B. No. 179 By:  Creighton     A BILL TO BE ENTITLED   AN ACT     relating to harassment, bullying, and cyberbullying of a public   school student or minor and 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) and (c) and adding Subsections (a-1) and   (f) to read as follows:          (a)  In this section:                (1)  "Bullying":                      (A)  [, "bullying"] means 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, or [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 any electronic communication device, including   through the use of a cellular or other type of telephone, a   computer, a camera, electronic mail, instant messaging, text   messaging, a social media application, an Internet website, or any   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 vehicle 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 shall   adopt a policy, including any necessary procedures, concerning   bullying that:                (1)  prohibits the bullying 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)  a parent or guardian of the alleged victim   not later than the next school day after the incident is reported;   and                      (B)  a parent or guardian of the alleged bully   within a reasonable amount of time after the incident;                (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.).          (f)  Each school district shall establish a district-wide   mental health plan to prevent and mediate bullying incidents and   address suicide prevention.          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 student to   commit or attempt to commit suicide;                (2)  incites violence against a student through group   bullying; or                (3)  releases or threatens to release intimate visual   material of a minor or a student who is 18 years of age or older   without the student's consent.          (c)  Nothing in this section exempts a school from reporting   a finding of 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 HARASSMENT; LIABILITY. (a)  The   principal of a public primary or secondary school, or a person   designated by the principal under Subsection (c), shall make a   report to any school district police department, if applicable, or   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, after an investigation   is completed, the principal has reasonable grounds to believe that   a student engaged in conduct that constitutes an offense under   Section 22.081, 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 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 who is not a school employee but is employed by   an entity that contracts with a district or school to use school   property is not required to make a report under this section and may   not be designated by the principal of a public primary or secondary   school to make a report. A person who voluntarily makes a report   under this section is immune from civil or criminal liability.          (e)  A person who takes any action under this section is   immune from civil or criminal liability or disciplinary action   resulting from that action.          (f)  Notwithstanding any other law, this section does not   create a civil, criminal, or administrative cause of action or   liability or create a standard of care, obligation, or duty that   provides a basis for a cause of action for an act under this   section.          (g)  A school district and school personnel and school   volunteers are immune from suit resulting from an act under this   section, including an act under related policies and procedures.          (h)  An act by school personnel or a school volunteer under   this section, including an act under related policies and   procedures, is the exercise of judgment or discretion on the part of   the school personnel or school volunteer and is not considered to be   a ministerial act for purposes of liability of the school district   or the district's employees.          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 12.104(b), Education Code, is amended to   read as follows:          (b)  An open-enrollment charter school is subject to:                (1)  a provision of this title establishing a criminal   offense; and                (2)  a prohibition, restriction, or requirement, as   applicable, imposed by this title or a rule adopted under this   title, relating to:                      (A)  the Public Education Information Management   System (PEIMS) to the extent necessary to monitor compliance with   this subchapter as determined by the commissioner;                      (B)  criminal history records under Subchapter C,   Chapter 22;                      (C)  reading instruments and accelerated reading   instruction programs under Section 28.006;                      (D)  accelerated instruction under Section   28.0211;                      (E)  high school graduation requirements under   Section 28.025;                      (F)  special education programs under Subchapter   A, Chapter 29;                      (G)  bilingual education under Subchapter B,   Chapter 29;                      (H)  prekindergarten programs under Subchapter E   or E-1, Chapter 29;                      (I)  extracurricular activities under Section   33.081;                      (J)  discipline management practices or behavior   management techniques under Section 37.0021;                      (K)  health and safety under Chapter 38;                      (L)  public school accountability under   Subchapters B, C, D, E, F, G, and J, Chapter 39;                      (M)  the requirement under Section 21.006 to   report an educator's misconduct;                      (N)  intensive programs of instruction under   Section 28.0213; [and]                      (O)  the right of a school employee to report a   crime, as provided by Section 37.148;                      (P)  bullying prevention policies and procedures   under Section 37.0832;                      (Q)  the right of a school under Section 37.0052   to place a student who has engaged in certain bullying behavior in a   disciplinary alternative education program or to expel the student;   and                      (R)  the requirement under Section 37.0151 to   report to local law enforcement certain conduct constituting   harassment.          SECTION 7.  Section 33.006, Education Code, is amended by   amending Subsection (b) and adding Subsection (c) 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, nonreporting conciliator   for interpersonal conflicts and discord involving two or more   students arising out of accusations of bullying under Section   37.0832.          (c)  Nothing in Subsection (b)(7) exempts a school counselor   from any mandatory reporting requirements imposed by other   provisions of law.          SECTION 8.  Title 6, Civil Practice and Remedies Code, is   amended by adding Chapter 129A to read as follows:     CHAPTER 129A. RELIEF FOR BULLYING OF CHILD          Sec. 129A.001.  DEFINITIONS. In this chapter:                (1)  "Bullying communication" means unwanted   electronic communication directed at a recipient by a communicator:                      (A)  that consists of multiple communications:                            (i)  with respect to which the communicator   acts intentionally and with malice;                            (ii)  that:                                  (a)  when taken together, were extreme   and outrageous in light of the content, manner, time, place, and   number of the communications; or                                  (b)  were harassing and offensive and   were made by the communicator acting in concert with two or more   individuals the communicator knew to be making harassing and   offensive communications directed at the recipient if the   communications, when taken together, were extreme and outrageous in   light of the manner, time, place, and number of communications; and                            (iii)  with respect to which the actions of   the communicator caused or, if made in concert with other   individuals as provided by Subparagraph (ii)(b), contributed to   causing the recipient to suffer severe emotional distress; or                      (B)  in which the communicator in multiple   communications, acting intentionally and with malice:                            (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 depicting the recipient; or                            (iii)  threatens the recipient with bodily   injury or bodily injury to 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)  "Communicator" means a natural person who sends   bullying communication.                (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,   a facsimile machine, a computer, a camera, electronic mail, instant   messaging, text messaging, a social media application, an Internet   website, or any other Internet-based communication tool.                (5)  "Intimate visual material" has the meaning   assigned by Section 98B.001.                (6)  "Recipient" means a person who receives bullying   communication.          Sec. 129A.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 communication, is younger than 18 years of age.          Sec. 129A.003.  LIABILITY. A defendant is liable to a   claimant under this chapter if the claimant shows that the   defendant engaged in actionable bullying directed toward the   recipient that proximately caused harm to the recipient.          Sec. 129A.004.  DAMAGES. A claimant who prevails in a suit   under this chapter may recover actual damages for all physical,   mental, or emotional injury proximately caused by the actionable   bullying that is the subject of the suit. The claimant may recover   actual damages for mental anguish in an amount not to exceed $5,000   in a suit brought under this chapter, regardless of the number of   defendants named in the suit. Total damages under this section may   not exceed $25,000 in a suit brought under this chapter, regardless   of the number of defendants named in the suit.          Sec. 129A.005.  PARENTAL RESPONSIBILITY. (a)  A parent of   or person standing in parental relation to a child who engages in   actionable bullying directed toward the recipient is liable to the   claimant for the lesser of:                (1)  damages recoverable by the claimant under Section   129A.004; or                (2)  $10,000.          (b)  It is an affirmative defense to liability under this   chapter that a parent or person standing in parental relation:                (1)  took reasonable actions to supervise a   communicator's use of the means employed by the communicator to   direct bullying communication to a recipient; and                (2)  either:                      (A)  did not know about the bullying   communication; or                      (B)  if the parent or person standing in parental   relation knew about the bullying communication, took reasonable   actions to cause the communicator to cease sending bullying   communications.          Sec. 129A.006.  INJUNCTIVE RELIEF. (a)  A recipient of   bullying communication who is younger than 18 years of age at the   time the communication is received or a parent of or person standing   in parental relation to the recipient may seek injunctive relief   under this chapter against the individual who sent the bullying   communication or, if the communicator is younger than 18 years of   age, against a parent of or person standing in parental relation to   the communicator.          (b)  A court may issue a temporary restraining order,   temporary injunction, or permanent injunction appropriate under   the circumstances to prevent any further bullying communication,   including an order or injunction:                (1)  enjoining a defendant from sending bullying   communication; or                (2)  compelling a defendant who is a parent of or person   standing in parental relation to a communicator who is younger than   18 years of age to take reasonable actions to cause the communicator   to cease sending bullying communication.          (c)  A plaintiff in an action for injunctive relief brought   under this section is entitled to a temporary restraining order on   showing that the plaintiff is likely to succeed in establishing   that the communicator sent bullying communication to the recipient.   The plaintiff is not required to plead or prove that, before notice   can be served and a hearing can be held, immediate and irreparable   injury, loss, or damage is likely to result from past or future   bullying communication by the communicator to the recipient.          (d)  A plaintiff is entitled to a temporary or permanent   injunction under this section on showing that the communicator sent   bullying communication to the recipient.          (e)  A court granting a temporary restraining order or   temporary injunction under this section may, on motion of either   party or sua sponte, order the preservation of any relevant   electronic communication. The temporary restraining order or   temporary injunction is not required to:                (1)  define the injury or state why it is irreparable;                (2)  state why the order was granted without notice; or                (3)  include an order setting the cause for trial on the   merits with respect to the ultimate relief requested.          Sec. 129A.007.  PROMULGATION OF FORMS. (a)  The supreme   court shall, as the court finds appropriate, promulgate forms for   use as an application for initial injunctive relief by individuals   representing themselves in suits involving bullying communication   and instructions for the proper use of each form or set of forms.          (b)  The forms and instructions:                (1)  must be written in language that is easily   understood by the general public;                (2)  shall be made readily available to the general   public in the manner prescribed by the supreme court; and                (3)  must be translated into the Spanish language.          (c)  The Spanish language translation of a form must:                (1)  state:                      (A)  that the Spanish language translated form is   to be used solely for the purpose of assisting in understanding the   form and may not be submitted to the court; and                      (B)  that the English language version of the form   must be submitted to the court; or                (2)  be incorporated into the English language version   of the form in a manner that is understandable to both the court and   members of the general public.          (d)  Each form and its instructions must clearly and   conspicuously state that the form is not a substitute for the advice   of an attorney.          (e)  The attorney general and the clerk of a court shall make   the form available free of charge.          (f)  A court shall accept a form promulgated by the supreme   court under this section unless the form has been completed in a   manner that causes a substantive defect that cannot be cured.          Sec. 129A.008.  ATTORNEY'S FEES AND COSTS. In a proceeding   under this chapter, the court may award to any claimant or defendant   costs and reasonable and necessary attorney's fees as are equitable   and just. The amount awarded to any party under this section for   attorney's fees may not exceed $5,000.          Sec. 129A.009.  INAPPLICABILITY. (a)  An action filed under   this chapter may not be joined with an action filed under Title 1,   4, or 5, Family Code.          (b)  Chapter 27 does not apply to an action under this   chapter.          Sec. 129A.010.  CERTAIN CONDUCT EXCEPTED. This chapter does   not apply to a claim brought against an interactive computer   service, as defined by 47 U.S.C. Section 230, for bullying   communication.          SECTION 9.  Chapter 22, Penal Code, is amended by adding   Section 22.081 to read as follows:          Sec. 22.081.  HARASSMENT OF CHILD TO CAUSE SUICIDE OR   SERIOUS BODILY INJURY. (a)  In this section, "child" means a   person younger than 18 years of age.          (b)  A person commits an offense if the person directs   multiple written, oral, or electronic communication toward a child   in a manner that is reasonably likely to harass, annoy, alarm,   abuse, torment, embarrass, or offend the child, with the intent   that the child:                (1)  commit suicide; or                (2)  engage in conduct causing serious bodily injury to   the child.          (c)  An offense under this section is a Class B misdemeanor,   except that the offense is a Class A misdemeanor if:                (1)  it is shown on the trial of the offense that the   actor:                      (A)  acted in concert with another person to   engage in the conduct described in this section with respect to the   same victim; or                      (B)  has been previously convicted of an offense   under this section; or                (2)  the actor's conduct causes the child to commit   suicide or causes the child to attempt to commit suicide and that   attempt results in serious bodily injury to the child.          (d)  For the purposes of Subsection (c)(1)(B), a defendant   has been previously convicted under this section if the defendant   was adjudged guilty of the offense or entered a plea of guilty or   nolo contendere in return for a grant of deferred adjudication   community supervision, regardless of whether the sentence for the   offense was ever imposed or whether the sentence was probated and   the defendant was subsequently discharged from deferred   adjudication community supervision.          (e)  A person who is subject to prosecution under both this   section and another law may be prosecuted under either or both this   section and the other law.          SECTION 10.  Section 37.0832(b), Education Code, is   repealed.          SECTION 11.  Chapter 129A, Civil Practice and Remedies Code,   as added by this Act, applies only to a cause of action that accrues   on or after the effective date of this Act. A cause of action that   accrues before the effective date of this Act is governed by the law   in effect immediately before that date, and that law is continued in   effect for that purpose.          SECTION 12.  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 13.  This Act takes effect September 1, 2017.     * * * * *