89R5859 MZM-F     By: Schatzline 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.  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 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 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 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.          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.