HB2705 - Relating to the protection of free speech rights at institutions of higher education, including the prosecution of the offenses of trespass, damage, and defacement at certain institutions of higher education, and criminal trespass.

      By: Zwiener H.B. No. 2705       A BILL TO BE ENTITLED   AN ACT   relating to the protection of free speech rights at institutions of   higher education, including the prosecution of the offenses of   trespass, damage, and defacement at certain institutions of higher   education, and criminal trespass.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Chapter 38, Code of Criminal Procedure, is   amended by adding Article 38.52 to read as follows:           Art.   38.52.     EVIDENCE IN PROSECUTION FOR CERTAIN OFFENSES   INVOLVING EXPRESSIVE ACTIVITY AT HIGHER EDUCATION INSTITUTION.   (a)     In this article, "expressive activities" has the meaning assigned   by Section 51.9315, Education Code.           (b)     This article applies only to the prosecution of an   offense under Section 30.05 or 42.03, Penal Code, that occurred on   the campus of an institution of higher education while the   defendant was engaging in expressive activities.           (c)     In the prosecution of an offense described by Subsection   (b), evidence of the following is admissible:                 (1)     an institution of higher education's resolution of   an alleged violation of the institution's policies on expressive   activities related to the defendant's conduct giving rise to the   offense; and                 (2)     a resolution by the campus free expression review   board established under Section 51.9316, Education Code, of an   appeal to the review board of an institution of higher education's   resolution described by Subdivision (1).          SECTION 2.  Section 51.204, Education Code, is amended by   adding Subsection (c) to read as follows:           (c)     It is an affirmative defense to prosecution under this   section that the person:                 (1)     at the time of the offense, was engaging in   expressive activities, as defined by Section 51.9315; and                 (2)     was found not to have engaged in any misconduct by   the institution or the campus free expression review board   established under Section 51.9316 with respect to the conduct   giving rise to the offense.          SECTION 3.  Section 51.9315(a), Education Code, is amended   by amending Subdivision (2) and adding Subdivision (3-a) to read as   follows:                (2)  "Expressive activities" means any speech or   expressive conduct protected by the First Amendment to the United   States Constitution or by Section 8, Article I, Texas Constitution,   and includes assemblies, protests, speeches, the distribution of   written material, the carrying of signs, [ and ] the distribution and   circulation of petitions or digital media, and symbolic expression,   including the wearing of symbolic clothing or accessories .  The   term does not include commercial speech or hate speech, including   symbols associated with hate speech .                 (3-a) "Review board" means the campus free expression   review board established under Section 51.9316.          SECTION 4.  Section 51.9315, Education Code, is amended by   amending Subsections (b), (c), (d), (f), and (h) and adding   Subsections (d-1) and (h-1) to read as follows:          (b)  It is the policy of this state and the purpose of this   section to ensure an open, inclusive exchange of ideas fundamental   to higher education and protect the expressive rights of persons   guaranteed by the constitutions of the United States and of this   state by:                (1)  recognizing freedom of speech and assembly as   central to the mission of institutions of higher education; and                (2)  ensuring that all persons may assemble peaceably   on the campuses of institutions of higher education for expressive   activities, including to listen to or observe the expressive   activities of others.          (c)  An institution of higher education shall:                (1)  ensure that the common outdoor areas of the   institution's campus are deemed traditional public forums; and                (2)  permit any person to engage in expressive   activities in those areas of the institution's campus freely, as   long as the person's conduct:                      (A)  is not unlawful; and                      (B)  does not materially and substantially   disrupt the academic instruction of classrooms or administrative   functioning of the institution.          (d)  Notwithstanding Subsection (c), an institution of   higher education may adopt a policy that imposes reasonable   restrictions on the time, place, and manner of expressive   activities in the common outdoor areas of the institution's campus   if those restrictions:                (1)  are narrowly tailored to serve a significant   institutional interest;                (2)  employ clear, published, content-neutral, and   viewpoint-neutral criteria;                (3)  provide for ample alternative means of expression;   and                (4)  allow members of the university community to   assemble or distribute written , digital, or symbolic material   without a permit or other permission from the institution.           (d-1)     A policy adopted under Subsection (d) must be approved   by the review board and amended in accordance with an order of the   review board.          (f)  Each institution of higher education shall adopt a   policy detailing students' rights and responsibilities regarding   expressive activities at the institution.  The policy must:                (1)  allow:                      (A)  any person to, subject to reasonable   restrictions adopted under Subsection (d), engage in expressive   activities on campus, including by responding to the expressive   activities of others; and                      (B)  student organizations and faculty to,   subject to Subsection (h), invite speakers to speak on campus;                (2)  establish disciplinary sanctions for students,   student organizations, or faculty who unduly interfere with the   expressive activities of others on campus;                (3)  include a grievance procedure for addressing   complaints of a violation of this section that includes mechanisms   for redress ;                (4)  be approved by a majority vote of the institution's   governing board before final adoption; [ and ]                (5)  be posted on the institution's Internet website ;                 (6)  be approved by the review board; and                 (7)     be amended in accordance with an order of the   review board .          (h)  In determining whether to approve a speaker to speak on   campus or in determining the amount of a fee to be charged for use of   the institution's facilities for purposes of engaging in expressive   activities, an institution of higher education:                (1)  may consider only content-neutral and   viewpoint-neutral criteria related to the needs of the event, such   as:                      (A)  the proposed venue and the expected size of   the audience;                      (B)  any anticipated need for campus security   based on the factors described by Paragraph (A) and any history of   unprotected or unlawful speech by the speaker or the requesting   student organization or faculty member ;                      (C)  any necessary accommodations; and                      (D)  any relevant history of compliance or   noncompliance by the requesting student organization or faculty   member with the institution's policy adopted under Subsection (f)   and any other relevant policies; and                (2)  may not consider any anticipated controversy   related to the event.           (h-1)     If an institution of higher education charges a fee   for use of the institution's facilities for purposes of engaging in   expressive activities, the institution shall provide to the person   directed to pay the fee an itemized receipt detailing the method for   determining the amount of the fee.          SECTION 5.  Subchapter Z, Chapter 51, Education Code, is   amended by adding Sections 51.9316 and 51.9317 to read as follows:           Sec.   51.9316.     CAMPUS FREE EXPRESSION REVIEW BOARD.   (a)   In   this section, "review board" means the campus free expression   review board established under this section.           (b)     The campus free expression review board is established   to assess the policies and practices of institutions of higher   education regarding expressive activities under Section 51.9315 to   ensure fairness, viewpoint neutrality, and protection of those   activities.           (c)     The review board is composed of the following eight   members:                 (1)     two members appointed by the most senior member of   the majority party of the Texas House of Representatives;                 (2)     two members appointed by the most senior member of   the minority party of the Texas House of Representatives;                 (3)     two members appointed by the most senior member of   the majority party of the Texas State Senate; and                 (4)     two members appointed by the most senior member of   the minority party of the Texas State Senate.           (d)     In appointing members of the review board, the   appointing authorities under Subsection (c) shall coordinate to   ensure that the review board includes legal scholars, legal   professionals, or professionals in the nonprofit sector who   specialize in the First Amendment to the United States Constitution   and free speech protections.           (e)  A member of the review board serves a two-year term.           (f)     The members of the review board shall elect a   chairperson by majority vote.           (g)     A member of the review board is not entitled to   compensation but may be reimbursed for actual and necessary travel   and other expenses incurred in the performance of the member's   duties on the review board.           (h)     A person aggrieved by an institution of higher   education's resolution of the grievance procedure under Section &#xA0 [Text truncated for display. Full text available on Congress.gov.]