Relating to civil liability for obscenity.

89(R) HB 1375 - House Committee Report version - Bill Text

89R27817 MZM-F

By: Schatzline

H.B. No. 1375

Substitute the following for H.B. No. 1375:

By: Leach

C.S.H.B. No. 1375

A BILL TO BE ENTITLED

AN ACT

relating to civil liability for obscenity.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 4, Civil Practice and Remedies Code, is

amended by adding Chapter 98C to read as follows:

CHAPTER 98C. LIABILITY FOR OBSCENITY

Sec. 98C.001. DEFINITIONS. In this chapter:

(1)

"Commercial entity"

includes a corporation,

limited liability company, partnership, limited partnership, sole

proprietorship, or other legally recognized business entity.

(2)

"Harmful material" has the meaning assigned by

Section 43.24, Penal Code.

(3)

"Minor" has the meaning assigned by Section 43.24,

Penal Code.

(4) "News-gathering organization" includes:

(A)

an employee of a newspaper, news publication,

or news source, printed or on an online or mobile platform, of

current news and public interest, who is acting within the course

and scope of that employment and can provide documentation of that

employment with the newspaper, news publication, or news source;

and

(B)

an employee of a radio broadcast station,

television broadcast station, cable television operator, or wire

service who is acting within the course and scope of that employment

and can provide documentation of that employment.

(5)

"Obscenity" means conduct that constitutes an

offense under Subchapter B, Chapter 43, Penal Code.

Sec.

98C.002.

LIABILITY FOR OBSCENITY. A defendant is

liable, as provided by this chapter, to a person harmed for damages

arising from obscenity if the defendant:

(1) engages in the obscenity; or

(2)

knowingly or intentionally benefits from

participating in an entity that engages in the obscenity.

Sec.

98C.003.

COMMERCIAL ENTITY LIABILITY. A commercial

entity is liable, as provided by this chapter, to a person harmed

for damages arising from the distribution, transmission, or display

of harmful material to a minor if, knowing the character and content

of the material, the entity knowingly or intentionally benefits

from participating in the distribution, transmission, or display of

harmful material to a minor by facilitating, aiding, encouraging,

or contributing to the distribution, transmission, or display in a

manner that:

(1) is readily accessible to minors; or

(2)

includes a minor's visual image, audio voice, or

participation in any manner.

Sec.

98C.004.

MAJORITY SHAREHOLDER AND MEMBER LIABILITY.

(a) This section applies to a legal entity governed by Title 2, 3,

or 7, Business Organizations Code.

(b)

Notwithstanding any provision of the Business

Organizations Code, a majority shareholder or member of a legal

entity described by Subsection (a) that is liable under this

chapter is jointly and severally liable with the entity to the

person harmed by the obscenity if the person demonstrates that the

majority shareholder or member caused the entity to be used for the

purpose of engaging in obscenity and that the conduct was for the

direct personal benefit of the majority shareholder or member.

Sec.

98C.005.

PROHIBITED DEFENSES. It is not a defense to

liability under this chapter that the defendant:

(1)

has been acquitted or has not been prosecuted or

convicted under Subchapter B, Chapter 43, Penal Code;

(2)

has been convicted of a different offense or a

different type or class of offense for the conduct that is alleged

to give rise to liability under this chapter;

(3) claims ignorance or mistake of law;

(4)

has a belief that the requirements of this chapter

are unconstitutional or were unconstitutional;

(5)

relies on any court decision that has been

overruled on appeal or by a subsequent court, even if that court

decision had not been overruled when the defendant engaged in the

conduct that violates this chapter; or

(6)

relies on any state or federal court decision that

is not binding on the court in which the action has been brought.

Sec.

98C.006.

DAMAGES. (a)

A court shall award a claimant

who prevails in an action under this chapter:

(1)

actual damages, including damages for mental

anguish even if an injury other than mental anguish is not shown;

(2) court costs; and

(3) reasonable attorney's fees.

(b)

In addition to an award under Subsection (a), a claimant

who prevails in an action under this chapter may recover exemplary

damages.

Sec.

98C.007.

CAUSE OF ACTION CUMULATIVE. (a)

The cause of

action created by this chapter is cumulative of any other remedy

provided by common law or statute.

(b)

Each occurrence of obscenity that harms a person,

regardless of whether the occurrence is part of a pattern of

conduct, gives rise to a separate claim for civil liability under

this chapter.

(c)

A prevailing defendant in an action brought under this

chapter may recover reasonable attorney's fees and court costs.

Sec.

98C.008.

JOINT AND SEVERAL LIABILITY. A person who

engages in conduct described by Section 98C.002 or 98C.003 and is

found liable under this chapter or other law for any amount of

damages arising from that conduct is jointly and severally liable

with any other defendant for the entire amount of damages arising

from that conduct.

Sec.

98C.009.

LIBERAL CONSTRUCTION AND APPLICATION. (a)

This chapter shall be liberally construed and applied to promote

its underlying purpose to protect persons from obscenity and

provide adequate remedies to those who are harmed by obscenity.

(b) This chapter may not be construed to:

(1)

wholly or partly repeal, either expressly or by

implication, any statute or part of a statute that prohibits

obscenity;

(2)

restrict a political subdivision from regulating

or prohibiting obscenity in a manner that is at least as stringent

as the laws of this state; or

(3)

legalize any conduct prohibited by this chapter or

Subchapter B, Chapter 43, Penal Code.

(c)

This chapter does not apply to a bona fide news or public

interest broadcast, website video, report, or event and may not be

construed to affect the rights of a news-gathering organization.

(d)

An Internet service provider, or its affiliates or

subsidiaries, a search engine, or a cloud service provider may not

be held to have violated this chapter solely for providing access or

connection to or from a website or other information or content on

the Internet or on a facility, system, or network not under that

provider's control, including transmission, downloading,

intermediate storage, access software, or other services to the

extent the provider or search engine is not responsible for the

creation of the content that constitutes the obscenity or harmful

material.

SECTION 2. (a) Mindful of
Leavitt v. Jane L.
, 518 U.S. 137

(1996), in which in the context of determining the severability of a

state statute the United States Supreme Court held that an explicit

statement of legislative intent is controlling, it is the intent of

the legislature that every provision, section, subsection,

sentence, clause, phrase, or word in this Act, and every

application of the provisions in this Act, is severable from each

other.

(b) If any application of any statutory provision in this

Act to any person, group of persons, or circumstances is found by a

court to be invalid or unconstitutional, the remaining applications

of that statutory provision to all other persons and circumstances

shall be severed and may not be affected. All constitutionally

valid applications of this Act shall be severed from any

applications that a court finds to be unconstitutional or otherwise

invalid, leaving the valid applications in force, because it is the

legislature's intent and priority that the valid applications be

allowed to stand alone.

(c) Even if a reviewing court finds a substantial number of

a statute's applications under this Act to be unconstitutional,

judged in relation to this Act's plainly legitimate sweep, the

applications that do not presently violate the United States

Constitution or Texas Constitution shall be severed from the

remaining applications and shall remain in force, and shall be

treated as if the legislature had enacted a statute limited to the

persons, groups of persons, or circumstances for which the

statute's application does not violate the United States

Constitution or Texas Constitution.

(d) The legislature further declares that it would have

enacted this Act, and each provision, section, subsection,

sentence, clause, phrase, or word, and all constitutional

applications of this Act, irrespective of the fact that any

provision, section, subsection, sentence, clause, phrase, or word,

or applications of this Act, were to be declared unconstitutional.

(e) If any provision of this Act is found by any court to be

unconstitutionally vague, the applications of that provision that

do not present constitutional vagueness problems shall be severed

and remain in force.

(f) No court may decline to enforce the severability

requirements of Subsections (a), (b), (c), (d), and (e) of this

section on the ground that severance would rewrite the statute or

involve the court in legislative or lawmaking activity. A court

that declines to enforce or enjoins a state official from enforcing

a statutory provision does not rewrite a statute, as the statute

continues to contain the same words as before the court's decision.

A judicial injunction or declaration of unconstitutionality:

(1) is nothing more than an edict prohibiting

enforcement that may subsequently be vacated by a later court if

that court has a different understanding of the requirements of the

United States Constitution or Texas Constitution;

(2) is not a formal amendment of the language in a

statute; and

(3) no more rewrites a statute than a decision by the

executive not to enforce a duly enacted statute in a limited and

defined set of circumstances.

(g) If any federal or state court declares unconstitutional

or enjoins the enforcement of a provision in this Act and fails to

enforce the severability requirements of Subsections (a), (b), (c),

(d), (e), and (f) of this section, for any reason whatsoever, the

attorney general shall:

(1) adopt rules that enforce the requirements

described by this Act to the maximum possible extent while avoiding

the constitutional problems or other problems identified by the

federal or state court; and

(2) issue notice of those rules, not later than the

30th day after the date of the court ruling.

(h) If the attorney general fails to adopt the rules and

issue notice under Subsection (g) of this section, a person may

petition for a writ of mandamus requiring the attorney general to

adopt the rules and issue notice.

SECTION 3. The change in law made by this Act applies only

to a cause of action that accrues on or after the effective date of

this Act.

SECTION 4. This Act takes effect September 1, 2025.