85R26482 MEW-F     By: Minjarez, Faircloth, Moody, Larson, H.B. No. 306       King of Hemphill, et al.     Substitute the following for H.B. No. 306:     By:  Bernal C.S.H.B. No. 306       A BILL TO BE ENTITLED   AN ACT   relating to harassment, bullying, and cyberbullying of a public   school student or minor and certain mental health programs for   public school students.          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 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, 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 electronic communication, 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 bullying that occurs on school   property or at the site of a school-sponsored or school-related   activity on or off school property if the bullying:                (1)  interferes with a student's educational   opportunities; or                (2)  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 parent or guardian of the alleged victim   and 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 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.).          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.  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 5.  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; and                      (P)  bullying prevention policies and procedures   under Section 37.0832.          SECTION 6.  Section 21.054, Education Code, is amended by   adding Subsections (d-2) and (e-2) to read as follows:          (d-2)  Continuing education requirements for a classroom   teacher may include instruction regarding how grief and trauma   affect student learning and behavior and how evidence-based,   grief-informed, and trauma-informed strategies support the   academic success of students affected by grief and trauma.          (e-2)  Continuing education requirements for a principal may   include instruction regarding how grief and trauma affect student   learning and behavior and how evidence-based, grief-informed, and   trauma-informed strategies support the academic success of   students affected by grief and trauma.          SECTION 7.  Subchapter J, Chapter 21, Education Code, is   amended by adding Section 21.462 to read as follows:          Sec. 21.462.  RESOURCES REGARDING STUDENTS WITH MENTAL   HEALTH NEEDS. The agency, in coordination with the Health and Human   Services Commission, shall establish and maintain an Internet   website to provide resources for school district or open-enrollment   charter school employees regarding working with students with   mental health conditions.  The agency must include on the Internet   website information about:                (1)  grief-informed and trauma-informed practices;                (2)  building skills related to managing emotions,   establishing and maintaining positive relationships, and   responsible decision-making;                (3)  positive behavior interventions and supports; and                (4)  a safe and supportive school climate.          SECTION 8.  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, nonreporting resource for   interpersonal conflicts and discord involving two or more students,   including accusations of bullying under Section 37.0832.          SECTION 9.  Title 6, Civil Practice and Remedies Code, is   amended by adding Chapter 129A to read as follows:   CHAPTER 129A.  RELIEF FOR CYBERBULLYING OF CHILD          Sec. 129A.001.  DEFINITION. In this chapter,   "cyberbullying" has the meaning assigned by Section 37.0832(a),   Education Code.          Sec. 129A.002.  INJUNCTIVE RELIEF. (a) A recipient of   cyberbullying behavior who is younger than 18 years of age at the   time the cyberbullying occurs or a parent of or person standing in   parental relation to the recipient may seek injunctive relief under   this chapter against the individual who was cyberbullying the   recipient or, if the individual is younger than 18 years of age,   against a parent of or person standing in parental relation to the   individual.          (b)  A court may issue a temporary restraining order,   temporary injunction, or permanent injunction appropriate under   the circumstances to prevent any further cyberbullying, including   an order or injunction:                (1)  enjoining a defendant from engaging in   cyberbullying; or                (2)  compelling a defendant who is a parent of or person   standing in parental relation to an individual who is younger than   18 years of age to take reasonable actions to cause the individual   to cease engaging in cyberbullying.          (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 individual was cyberbullying 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 cyberbullying by   the individual against the recipient.          (d)  A plaintiff is entitled to a temporary or permanent   injunction under this section on showing that the individual was   cyberbullying the recipient.          (e)  A temporary restraining order or temporary injunction   granted under this section shall 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.003.  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 cyberbullying 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   inform members of the general public of the availability of a form   promulgated by the supreme court under this section as appropriate   and 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.004.  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.005.  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.006.  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 cyberbullying.          SECTION 10.  Sections 161.325(a-1), (d), (e), (f), and (i),   Health and Safety Code, are amended to read as follows:          (a-1)  The list must include programs in the following areas:                (1)  early mental health intervention;                (2)  mental health promotion [and positive youth   development];                (3)  substance abuse prevention;                (4)  substance abuse intervention; [and]                (5)  suicide prevention;                (6)  grief-informed and trauma-informed practices;                (7)  building skills related to managing emotions,   establishing and maintaining positive relationships, and   responsible decision-making;                (8)  positive behavior interventions and supports and   positive youth development; and                (9)  safe and supportive school climate.          (d)  A [The board of trustees of each] school district shall   develop practices and procedures [may adopt a policy] concerning   each area listed in Subsection (a-1), including mental health   promotion and intervention, substance abuse prevention and   intervention, and suicide prevention that:                (1)  includes [establishes] a procedure for providing   notice of a recommendation for early mental health or substance   abuse intervention regarding a student to a parent or guardian of   the student within a reasonable amount of time after the   identification of early warning signs as described by Subsection   (b)(2);                (2)  includes [establishes] a procedure for providing   notice of a student identified as at risk of committing suicide to a   parent or guardian of the student within a reasonable amount of time   after the identification of early warning signs as described by   Subsection (b)(2);                (3)  establishes that the district may develop a   reporting mechanism and may designate at least one person to act as   a liaison officer in the district for the purposes of identifying   students in need of early mental health or substance abuse   intervention or suicide prevention; and                (4)  sets out available counseling alternatives for a   parent or guardian to consider when their child is identified as   possibly being in need of early mental health or substance abuse   intervention or suicide prevention.          (e)  The practices and procedures developed under Subsection   (d) [policy] must prohibit the use without the prior consent of a   student's parent or guardian of a medical screening of the student   as part of the process of identifying whether the student is   possibly in need of early mental health or substance abuse   intervention or suicide prevention.          (f)  The practices [policy] and [any necessary] procedures   developed [adopted] under Subsection (d) must be included in:                (1)  the annual student handbook; and                (2)  the district improvement plan under Section   11.252, Education Code.          (i)  Nothing in this section is intended to interfere with   the rights of parents or guardians and the decision-making   regarding the best interest of the child. Practices [Policy] and   procedures developed [adopted] in accordance with this section are   intended to notify a parent or guardian of a need for mental health   or substance abuse intervention so that a parent or guardian may   take appropriate action. Nothing in this section shall be   construed as giving school districts the authority to prescribe   medications. Any and all medical decisions are to be made by a   parent or guardian of a student.          SECTION 11.  Sections 42.07(a) and (c), Penal Code, are   amended to read as follows:          (a)  A person commits an offense if, with intent to harass,   annoy, alarm, abuse, torment, or embarrass another, the person:                (1)  initiates communication and in the course of the   communication makes a comment, request, suggestion, or proposal   that is obscene;                (2)  threatens, in a manner reasonably likely to alarm   the person receiving the threat, to inflict bodily injury on the   person or to commit a felony against the person, a member of the   person's family or household, or the person's property;                (3)  conveys, in a manner reasonably likely to alarm   the person receiving the report, a false report, which is known by   the conveyor to be false, that another person has suffered death or   serious bodily injury;                (4)  causes the telephone of another to ring repeatedly   or makes repeated telephone communications anonymously or in a   manner reasonably likely to harass, annoy, alarm, abuse, torment,   embarrass, or offend another;                (5)  makes a telephone call and intentionally fails to   hang up or disengage the connection;                (6)  knowingly permits a telephone under the person's   control to be used by another to commit an offense under this   section; [or]                (7)  sends repeated electronic communications in a   manner reasonably likely to harass, annoy, alarm, abuse, torment,   embarrass, or offend another; or                (8)  engages in bullying, as that term is defined by   Section 37.0832(a), Education Code.          (c)  An offense under this section is a Class B misdemeanor,   except that the offense is a Class A misdemeanor if the actor:                (1)  has previously been convicted under this section;   or                (2)  engages in the conduct described by Subsection   (a)(8) and:                      (A)  the actor has previously violated a temporary   restraining order or injunction issued under Chapter 129A, Civil   Practice and Remedies Code; or                      (B)  the actor's conduct results in serious bodily   injury or death.          SECTION 12.  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 through the use of   [by] electronic mail, instant message, network call, a cellular or   other type of telephone, a computer, a camera, text message, a   social media platform or application, an Internet website, any   other Internet-based communication tool, or facsimile machine; and                      (B)  a communication made to a pager.          SECTION 13.  Section 37.0832(b), Education Code, is   repealed.          SECTION 14.  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 15.  It is the intent of the legislature that every   provision, section, subsection, sentence, clause, phrase, or word   in this Act, and every application of the provisions in this Act to   each person or entity, are severable from each other.  If any   application of any provision in this Act to any person, group of   persons, or circumstances is found by a court to be invalid for any   reason, the remaining applications of that provision to all other   persons and circumstances shall be severed and may not be affected.          SECTION 16.  This Act takes effect September 1, 2017.