TEXAS LAW ON BULLYING - Senate Bill 407 / House Bill 2343 / House Bill 1386 - week #4

REMINDER  - YELLOW and in this issue, some RED are my opinion and extra research to fill in the gaps



S.B. ( a.k.a. Senate Bill) 407 became effective on June 17, 2011, after the Governor signed the bill during the 82nd regular session of the Texas legislature. State Senator Kirk Watson wrote S.B. 407 to address the “offense of electronic transmission of certain visual material depicting a minor and to certain educational programs concerning the prevention and awareness of that offense.” As more students are getting cell phones, this new practice of sending “sexually explicit images of themselves to one another via text message,” (e.g., “sexting”) has become an increasing issue among teenagers that often leads to bullying or harassment.  (FYI this is such an embarrassing and sensitive issue that children rarely bring this up in conversation to parents who have not full demonstrated that they are EXPERT LISTENERS.  In other words, lecturing parents will rarely EVER know  about this type of abuse )

Before the Texas legislature enacted S.B. 407, if the school district caught students sexting, the state could convict them of possession and distribution of child pornography, which is a felony—meaning the student could go to jail and have a lifetime registration as a sex offender. S.B. 407 remedied this problem by “discourage[ing] children from sexting but not ruin[ing] their young lives” if the court imposed the maximum penalty.(My research regarding penalties for Juveniles and Adults are as follows:

GENERAL COUNTRY WIDE  Juvenile Penalties

When a juvenile—a person under the age of 18—commits a criminal offense, that offense is dealt with through the juvenile justice system, not the adult criminal justice system. Juvenile courts have a wider discretion in the kinds of penalties they impose, even when a juvenile is charged with a serious offense.

* WARNING. Juvenile judges can choose to punish a teen who commits a sexting offense with a verbal warning without requiring any  other penalty.

*FINE - At least one state, Florida, imposes a fine of $60 on first-time juvenile sexting offenders.  Subsequent offenders may face more significant penalties.

*COMMUNITY SERVICE OR COUNSELING - A judge may order a teen who commits a sexting offense to perform community service.  The court may also order a teen to attend individual or family therapy.

*PROBATION -  Probation is also possible for juveniles sexting offenders.  A teen on probation must typically report to a probation office, stay in school, an comply with any other orders the court decides.

*DETENTION - Teen sexting might result in a court ordering the juvenile into a detention center, home confinement, group home, or other placement location.

GENERAL COUNTRY WIDE Adult Penalties

If a teen is 18 or older, that teen can be charged as an adult and face more significant penalties, especially if convicted of child pornography or a similar charge.

*INCARCERATION - An adult convicted of child pornography faces a potential prison sentence of 5 years or more.  All felony convictions impose a sentence of at least a year in prison, though a person convicted may not have to serve any prison time at all.

*FINES - Can be significant especially if the adult teen is convicted of child pornography charge.  Fines can easily exceed $5,000.

*PROBATION - An adult convicted of sexting can also face probation of at least 12 months, but typically longer.

*SEX OFFENDER REGISTRY - Adult teens convicted of a sexting crime are considered sex offenders and must register themselves with a state sex offender registry.  Sex offender registries are typically maintained by the police.  They keep track of where registered offenders live, and offenders must notify police oficer their new location if they move.  the registration requirements differ by state, but usually last at least 10 years

Teen Sexting in Texas

With the rise of cell phone use, especially among teenagers, the practice of “sexting”—sending nude or sexually suggestive photos by text message—has also become common.

Some states have enacted laws against sexting that occurs between teenagers, with penalties that are less severe than those that would apply to an adult who sends such photos to an under-age person. Other states punish sexting under pre-existing laws against child enticement and pornography.

Teen Sexting in Texas

Texas punishes teen sexting under its law against electronically transmitting sexual depictions of children. Under this law, it is illegal for one minor to electronically send an image of someone younger than 18 years old to another minor; this includes images of the sender, recipient, or another underage person.

However, minors have a defense to prosecution when the images are solely of the sender or recipient, were sent within a dating relationship, and both parties are not more than two years apart in age (including if one party is 18 or older).

Images sent to harass or bully the recipient may incur additional penalties for the sender.T (x. Stat. & Code Ann. § 43.261.)

Adults who sext with minors may be prosecuted for distributing sexual images to a minor, possessing or distributing child pornography, or promoting sexual performance by a minor. These crimes are usually punished as felonies, described below. (Tx. Stat. & Code Ann. § 43.24, -25, & -26.)

SEXTING AND FEDERAL LAW

Depending on the circumstances, sexting may also be a crime under federal law.

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 makes it illegal to produce, distribute, receive, or possess with intent to distribute any obscene visual depiction of a minor engaged in sexually explicit conduct. Knowing possession of such material—without intent to distribute—is also a crime under the PROTECT Act. (18 U.S.C. § 1466A(a)(1).)

Federal law also criminalizes causing a minor to take part in sexually explicit conduct in order to visually depict that conduct. Parents who allow this behavior can also be prosecuted. (18 U.S.C. § 2251.)

It’s also a federal crime to use a computer to ship, transport, receive, distribute, or reproduce for distribution a depiction of a minor actually engaging in sexually explicit conduct, or any material that otherwise constitutes child pornography. It’s another federal crime to promote or solicit sexually explicit material involving a minor. (18 U.S.C. §§ 2252, 2252A.)

Penalties for Sexting in Texas

It is a Class C misdemeanor to minors to send or receive sexts from other minors. Penalties may include a fine of up to $500. Penalties may increase for second and subsequent convictions or if the crime was part of cyber-bullying or other harassment.

However, a minor who receives sexts as part of cyber-bullying or other forms of harassment will be unlikely to be charged with (or convicted of) a crime.

An adult who sexts with a minor may be charged under one of several state laws mentioned above, depending on whether the adult sent, received, or solicited the sexts; and penalties increase if the adult distributed those images to others as child pornography. Penalties may include a fine of up to $10,000, up to 20 years in prison, or b

oth.

Sex Offender Registration

An adult punished for an offense involving sexting with a minor may be required, in addition to the fines and prison term described above, to register as a sex offender. And although it is less probable that a juvenile will have to register as a sex offender, it is a possibility that you should discuss with your attorney (described below).

Speak to an Attorney

Any charges that stem from teen sexting can result in some very serious consequences for the teen, the people who shared photos with the teen, and potentially for the teen's parents or guardians (who may be charged under Texas’ child enticement or endangerment laws for allowing the teen’s involvement in illegal sexual activities).

If you’ve been questioned by the police or charged with a sexting crime, you need to speak to an experienced local criminal defense lawyer immediately. Only an experienced local attorney will be able to provide you with legal advice, information about the courts and judges in your area, and the potential consequences of the charges against you, including whether juvenile defendants may be required to register as sex offenders. But federal prosecution of juveniles for sexting may be unlikely.  the Federal Jvenile Delinquency Act (FJDA) generally provides that, where possible, juveniles should be prosecuted in state - not federal courst.  (18 U.S.C 532.0)

While S.B. 407 mostly made changes to the Texas Penal Code, the Texas Code of Criminal Procedure, and the Texas Family Code, the bill did make changes to the TEC. “[S.B.] 407 requires the Texas School Safety Center . . . to create a sexting educational program” that would “be available to all school districts” and authorizes the school district to offer programs to its students. This bill amended the TEC by adding these school programs to address all the consequences of sexting and “the connection between bullying, cyberbullying, harassment, and a minor sharing visual material depicting a minor engaged in sexual  conduct.”80 S.B. 407 also requires school districts to make information about these programs

available to both students in appropriate grade levels and their parents.

III. DISCUSSION OF LESBIAN, GAY, BISEXUAL, AND TRANSGENDER
BULLYING IN SCHOOLS AND ITS CONNECTION WITH YOUTH SUICIDE

Who can forget the devastating story of Asher Brown, a thirteen-year-old boy who committed suicide because other students bullied him and accused him of being gay at his school in the Cypress-Fairbanks Independent School District in Houston. ( Despite your religious beliefs, any bullying based on sexual orientation is unacceptable) Asher’s parents said they complained to the school many times, but the school disregarded their concerns about their son. As “compared to their heterosexual peers,” young LGBT people “are at increased risk for bullying, teasing, harassment, physical assault, and suicide related
behaviors A ten year study of 7,000 LGBT students showed that due to their sexual orientation “eight of ten students had been verbally harassed at school; [f]our of ten had been physically harassed at school; [s]ix of ten felt unsafe at school; and one of five had been the victim of a physical assault at school.”

ASHER'S LAW HOUSE BILL 2343
As a result of Asher Brown’s suicide, State Representative Garnet Coleman wrote H.B. 2343—known as Asher’s Law—to address “youth suicide and . . . the prevention of associated discrimination, harassment, bullying, and cyberbullying.” The bill would amend the [Texas] Health and Safety Code to require the
Texas Department of Health, in coordination with the Texas Education Agency, to develop a comprehensive suicide prevention program for implementation in junior, middle, and high schools. The bill would also
amend the [Texas] Education Code to prohibit discrimination, harassment, and retaliation against . . . a student enrolled in the school district on account of actual or perceived ethnicity, color, gender, gender identity or expression, sexual orientation, disability, religion, or national origin of the . . . student

HOUSE BILL 1386
Garnet Coleman filed this bill on March 7, 2011, but it has not made it through the process for enactment by the Texas legislature—the next step is to have a public hearing, then a vote in the house and the senate, and finally a signature by the Governor. S.B. House Bill 1386 Garnet Coleman also wrote H.B. 1386, which became effective on June 17, 2011.The bill is similar to H.B. 2343 in that it amended the Texas Health
and Safety Code to require the Texas Department of Health, working with the Texas Education Agency (TEA), to provide suicide prevention programs in schools. However, the bill did not amend the TEC to prohibit discrimination based on sexual orientation or other minority groups. Texas, while still in the
majority, has not included sexual orientation as a protected class of citizens against discrimination in its laws.  national Non Profit Organizations  "The Trevor Project" & "It Gets Better Project" 

Next issue will deal with BALANCING THE CONSTITUTION AND CIVIL RIGHTS WITH NEW ANTI-BULLYING LAWS as they relate to Free Speech, the Americans with Disabiltiy Act of 1990 and the Office of Civil Rights. 

Be the Change you want to see
Peace to All
Coach J

TEXAS LAW ON BULLYING - Senate Bill 242 - week #3

SENATE BILL 242 As far as my  research shows, this bill is still Pending - A call to your local Senators office should give you info on the status of this bill.  House Bill 224, regarding cyber bullying) authored by Republican mark Strama, seems to also still be pending  as of March 1, 2011.   Keep your eyes and ears open regarding these Bills and call your senators office to show your support..   

John Cornyn

5001 Spring Valley Road 5001

Suite 1125 E Dallas, TX 752

Main: 972-239-1310

Fax: 972-239-2110

 and Ted Cruz

Dallas Office
3626 N. Hall St., Suite #410
Dallas, TX 75219
Phone: (214)-599-874

This was a bill written by Senator Wendy Davis because “the Texas legislature has failed to adopt modern language addressing the rapidly changing face of bullying in our schools,” but the bill was left pending in the

Texas legislature.  Senate Bill or S.B. 242, includes much of the same changes to the Texas Education Code or TEC as House Bill or  H.B. 1942, but this bill more closely addresses the issue of cyberbullying.

One change S.B. 242 proposes to make that H.B. 1942 does not is S.B. 242 directly defines cyberbullying as “bullying that is done using electronic  communication, including electronic media.”  H.B. 1942 includes in the definition of bullying expression through electronic means but does not directly call it cyberbullying. ((When it comes to laws, the exact definition means everything lest we forget Bill Clintons famous "It depends on what the meaning of the word is, is click here for youtube link to this video ))    S.B. 242 would also put the word cyberbullying in the section title (section 37.0832) of the TEC, which states the definition of bullying. S.B. 242 is a more aggressive bill; it states schools must include training regarding bullying problems, whereas H.B. 1942 states schools may include such training.  ((Here is what Texas law actually states as of the beginning of the school year 2012 and 2013 -- "State law encourages, but does not require, school districts to provide staff training on identifying, responding to, and reporting incidents of bullying.5 But, legislation did require state agencies to provide school districts with new training resources for students, teachers and other district staff, aimed at raising awareness of behaviors that may lead to bullying:

• The State Board of Education, the Texas Education Agency, and the Department of State Health Services will provide school districts with additional resources to help students and teachers better address bullying before it escalates; 
•  The State Board of Education, in consultation with the Texas School Safety Center, must incorporate into the TEKS for the health curriculum evidence-based best practices to help raise student awareness and address the prevention and identification of bullying; and, 
• The Department of State Health Services in coordination with the Texas Education Agency must develop a clearinghouse of training programs from which school boards may select to train district staff in early mental health intervention and suicide prevention. 

Beginning with the 2012-13 school year, Texas school boards will be required by law to adopt new 

or amend existing board policies that prohibit bullying, including cyber-bullying. Districts may also 

have to create or revise administrative procedures to address how the district responds to 

incidents of bullying. These changes are designed to promote a safe and secure learning 

environment for students. The Texas Association of School Boards will remain a resource as 

districts make these important revisions." ))))

 In addition, S.B. 242 expands on the procedures for training and reporting.62 The bill requires “annual training . . . for [school] district administrators[,] . . . employees[,] and volunteers who have significant contact with students”; training for students “regarding the elements of bullying”; and a bullying “educational program for . . . parents and guardians . . . .” (( it appears that Texas State law encourages, but does not require, school districts to provide staff training on identifying, responding to, and reporting incidents of bullying so you need to make sure, as parents and guardians, you are asking about the training your administrators and school staff may or may not have recieved )))

For reporting, the bill allows a school district to establish an anonymous reporting system (( this is great ))  Next, S.B. 242 would allow a parent of a bullied victim to request that the board of trustees transfer a student who engages in bullying.  ((It used to be that only the victim would transfer )) . On the other hand, H.B. 1942 does not allow a parent to request that the board of trustees transfer a student engaging in bullying; rather H.B. 1942 leaves that determination solely to the board of trustees. (( so make sure you really build your case ))  Furthermore, S.B. 242 states the school district superintendent shall provide notice to both students’ parents within two days after the school’s principal learns of an incident of bullying. (( of course this is only if your child is talking to you about this issue. It is more important now than ever that we stay connected to our kids.  If you cannot answer the following questions with some measure of accuracy, there is very large possibility your child is not talking to you about bullying. 

1. If your child could paint his room any color, what would it be? 
2. What does your child want to be when he or she grows up?
3. Who is your child's best friend(s)?
4. Does your child think he or she is too big or small for his age?
5. What does your child think others think about him/her?
6. What does your child like best about school? Why?
7. What does your child dislike about school? Why?
8. Who outside your family has influenced  your child the most?
9. Who is your child's hero?
10. How does your child feel about you?
11. What would your child change about your family?
12. Does your child think you are fair?
13. if your child had $5 today, what would they buy?
14. What is your child's favorite possession?
15. What would your child change about you?
16. If asked, "What do you do well?" what would your child say?
17. What is your child's favorite Youtuber?
18. What is your child's favorite website?
19. What are your child's computer passwords
20.  How many friends does your child have on Facebook?



 Moreover, S.B. 242 requires each board of trustees to publish an annual report that would include “the number, rate, and type of incidents of bullying, including cyberbullying . . . .”  (( According to my research this is in the student handbook  - check the out )) 

Also, S.B. 242 requires each school district to adopt a policy, among other specific requirements, that “addresses any other issue concerning bullying that the board of trustees determines to be appropriate.”
(( This is a great place to start your line of questioning and a Bill Clinton dream come true for some schools.  What exactly IS appropriate to your child's school ))

 Finally, the “school district shall provide annual written notice of the policy” to each student, parent, and district employee.70 The annual written notice must be available on the school district’s website and posted around the school.71 (( my extra research revealed ...."New board adopted anti-bullying policies and administrative procedures must be included annually in the student and employee handbooks and the district improvement plan. The procedure for reporting bullying must be posted on the district’s web site, to the extent practicable. " ))

The additional and stricter requirements S.B. 242 would add to the TEC could be the reason the bill was left pending in the Texas legislature, while H.B. 1942 is now part of the TEC.


I hope you are enjoying this as much as I am.  We as parents can never know too much when it comes to protecting our children.  The next installment will be covering Senate Bill 407 as it pertains to addressing electronic offenses.  This topic is going to be a bit explicit but i will do my best to water it down.


As always "Be the Change you Want to See"
Coach J
God Bless you all.

TEXAS LAW ON BULLYING - (Part 2) A continuation through HOUSE BILL 1942.

THE OVERALL PROBLEM

"Each year organizations conduct statistics on the number, type, place, and causes of bullying, and each year the statistics show bullying is a growing problem. One in four students report being a victim of bullying at school on a regular basis ((these are only the kids that report bullying, many say nothing until it is too late)) , and every day 160,000 students skip school because they fear other students will bully them.  Different types of bullying include physical, verbal, indirect (excluding people from social groups and spreading rumors about people), and the newest type of bullying—cyber-bullying.  While bullying used to take place almost exclusively at school, with the increasing availability of the internet and cell phones among students, bullying can take place anywhere at any time.  Causes of bullying include feelings of insecurity or lack of control in the bullies’ lives, responses to stress and anxiety, and anger from others who have bullied them in the past.  ((I have included pleasure just because some bullies are this way just for the fun of being in control ))  Although bullying can take place in any grade, the most susceptible are fourth through eighth grade students; ninety percent ((90%)) of these students have reported to be a victim of bullying."

When most people hear about kids bullying other kids, they think the bullying is happening face-to-face.  ((This is rarely happening this day and age by the way)) .42 While this kind of bullying still exists today, new technology, such as computers and cell phones, has created a new form of bullying—cyber bullying.  Because “bullies continue to find ways to manipulate these technologies for the destructive purpose of harming others,” the Texas legislature has to continuously make changes to state law.44    Given the nature of cyber bullying, issues have emerged when students are using their own personal devices as opposed to devices owned by the school district to engage in cyber bullying.45 In addition, cyber bullying has raised another issue resulting in conflicting court decisions because some anti-bullying laws regulate students’ conduct that takes place off school grounds e ((This means that the law really only addresses bullying off campus and that your school is held responsible for all on site bullying incidents, which are commonly handled poorly)) .46 The United States Second Circuit Court of Appeals upheld a punishment against a student who called school officials “douche bags” online from her home computer.47 The Second Circuit later noted “the ‘Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that . . . does not occur on school grounds or at a school-sponsored event. ((This, of course is due to the new nature of this type of "freedom of speech" ))  48 Another issue is whether searching students’ internet records (at school) is an illegal search and seizure protected under the Fourth Amendment.49 However, as legal precedent has allowed searches of students’ desks and lockers, the likely outcome would be that searches of students’ internet records at school would not violate the Fourth Amendment, especially if the school has “reason to suspect content that either (a) is illegal or (b) may provide evidence of activities that are illegal or violate school rules.”50  ((THIS MY FELLOW PARENTS IS WHERE YOU CAN HELP.   This is where we make sure that we are developing a child's confidence to ask questions any time about anything without fear of humiliation or understanding.  The rule in my house is that you are allowed to question everything {even ME}.  This is advice that I have passed to several parents in my Martial Arts Program with great success and this has given my children empowerment they need to question others behavior as well including their peers who take part in bullying.  Overall, we don't bully our kids and they don't bully others. This of course is one small example of parents helping their children contribute to stomping out this problem at the front door and is NOT the only contribution parents can make to this pestilence of a problem. ))

I would love to hear your feedback on this as we travel through this law.  Tune in next week when we will discuss SENATE BILL 242 written by Senator Wendy Davis in addressing the Texas legislature attempt to keep up with the rapid changes facing bullying in schools.


As always
"Be the Change you Want to See"
Peace
Coach J