HOGTIED!: MEDIA, PUBLIC POLICY, AND THE ENACTMENT OF THE TEXAS STALKER LAW

HOGTIED!: MEDIA, PUBLIC POLICY AND THE ENACTMENT
OF THE TEXAS STALKER LAW

Nicolas Antony Valcik, Ph.D., Assistant Director of The Office of Strategic Planning and Analysis, The University of Texas at Dallas

Danielle Lavin-Loucks, Ph.D., Assistant Professor of Crime, Justice Studies and Sociology, The University of Texas at Dallas

Direct all correspondence to:

Nicolas Valcik
The University of Texas at Dallas
P.O Box 830688
Richardson, TX 75083-0688
AD29
(972) 883-6190
nvalcik@utdallas.edu

or

Danielle Lavin-Loucks
The University of Texas at Dallas
P.O. Box 830688
Richardson, TX 75083-0688
GR31
(972) 883-4769
Danielle.Lavin-Loucks@utdallas.edu



Copyright © 2006. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form, or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior written consent of the authors.


Introduction

The purpose of this paper is to discuss aspects of current stalking law statutes for Texas as they relate to existing penal code statutes and to determine the rationale behind stalking legislation. To this end, Texas is used as a case study since its original stalking law was deemed unconstitutional by the courts and a new law has since been enacted. Our main objective is exploratory; to analyze the impact of the stalking law on public policy and practice (i.e. how the stalking law has been enforced). A second objective is to examine the influence of media coverage on the passage of legislation to combat stalking crimes. The question this paper attempts to address is whether stalking laws substantively add to current statutes, and if so are such statutes used effectively?

Our initial speculation is that harassment statutes or statutes on terrorist threats could be effective to combat stalkers with the addition of an escalation clause for repeat offenders. Similar to other legislation, hate crimes and three strikes for example, it is possible that the creation of new legislation is simply an attempt to link already prohibited behaviors/crimes with new motivations or levels of intent thereby necessitating new laws that more stringently combat the new form of crime. However, we must consider the ramifications of new legislation, especially when it is already subsumed in another penal code.

Definition of Terms Used in the Research

Throughout the research the following terms and statutes are used.

SB25 – State of Texas Senate Bill 25, 1993 – The 1st stalking law ruled unconstitutional.

SB97 and HB2 – State of Texas Senate Bill 97 and House Bill 2, 1997 – The 2nd stalking law that is currently enacted.

SB139 – State of Texas Senate Bill 139, 2003 – Current electronic stalking law that is currently enacted.

Operation Rescue – An anti-abortion organization operating in the state of Texas.

Literature Review

Stalking is a term used to describe the shadowing of prey for hunting purposes. However, more recently the label “stalking” is more likely to denote a criminal act of harassment with repetitive inappropriate behavior towards a victim. From a criminal justice viewpoint, the latter definition is applicable to a wide array of actions that can occur to the victim of such unwanted and unwarranted actions. As a result, many states have passed anti-stalking laws to institute guidelines for citizens to follow in determining the appropriateness of their social interactions.


Since stalking crimes are a relatively new category of criminal activity, little research exists on people convicted and arrested of stalking and the respective length of their sentence. Statistics for repeat offenders and those who are on parole for the offense are equally sparse. Likewise, little research to define what constitutes criminal acts of stalking, formulate public policy or gauge effectiveness of current stalking statutes have been undertaken (Dennison and Thomson, 2002). However, surveys in the United Kingdom, Australia and the United States demonstrate similarities in the definition stalking as a criminal act (Dennison and Thomson, 2002), which implies not only criminal justice agreement, but potentially similarities in public opinion. These characteristics include: presence of threats of intent to cause harm, degree of persistence, and the level and fear or distress experienced by the recipient (Dennison and Thomson, 2002.) More recent research has focused on cyberstalking, profiling the offenders and estimating the prevalence (Merschman, 2001), however, widespread research on stalkers remains elusive.
Purcell, Pathe and Mullen describe stalking as “a course of conduct in which one individual inflicts on another repeated unwanted intrusions and communications, to such an extent that the victim fears for his or her safety” (2004; 1) However, stalking law statutes are not uniform and vary significantly from state to state. Despite limitations of the anti-stalking law statutes, the laws fill a gap in criminal and civil law against stalking actions. However, there is also no evidence to support that existing legal statutes are not currently in place at the state level for repeat offenders of criminal stalking acts.

Faulkner states that there are nearly 200,000 stalkers in the United States (Faulkner, 1994.) However Faulkner also states that there is no uniform definition on criminal conduct for stalking actions. Since there is no clear definition of stalking as a crime, how can estimates be generated that calculate the number of stalkers currently operating in the United States? This would lead the reader to ask what is a stalker and are there really 200,000 stalkers. Faulkner states in the footnotes that the 200,000 figure has not been verified, but that the number demonstrates how important an issue stalking is in the nation (Faulkner, 1994.) What categories of criminal activity were counted or omitted when compiling the data for the research? Faulkner also implies that the construction of anti-stalking legislation was enacted more from public outcry than from careful consideration of the constitution (Faulkner, 1994). Considering how many states and countries have taken different approaches to enact an anti-stalking statute, this statement appears to be an overgeneralization by Faulkner, unless other countries too experienced the onslaught of media attention.

Law enforcement personnel also face difficulties in defining and applying stalking statutes as they were created by legislators. (Kindade, Burns and Fuentes, 2005). Processing offenders through the system has likewise proved difficult. A study by Jordan, Logan, Walker and Nigoff (2005) showed that the criminal justice system of one state, dismissed most of the stalking charges against the defendant. However the charges that were not dismissed frequently resulted in convictions with tough sentencing for the offender (Jordan, Logan, Walker and Nigoff, 2005).

In some countries, harassment statutes were designed to include stalking as well as other forms of harassment (Petch, 2002). However, researchers find inconsistent application of harassment laws, as well as misspecifications that lead to infrequent use. States that continue to operate under harassment statutes, attempting to fit stalking into an already existing structure have experienced difficulties in assessing penalties that reflect the severity of the offense (Finch, 2002). Even in states where stalking legislation is drafted, it faces considerable challenges as it frequently suffers from vagueness and over breadth (Bjerregaard, 1996). At the other end of the spectrum, highly specific legislation omits all but extreme instances of stalking, rendering the law useless for most victims (Faulkner and Hsiao, 1994).


Methodology

The focus of this research is to collect stalking statutes and use data to assess the statutes’ effectiveness in reducing stalking crimes. The method we used involved a process of constant comparison, reviewing legislative bills passed through the State of Texas legislature, in light of other states’ legislative initiatives for stalking. We also gathered data from the Texas Department of Corrections (TDC). Both qualitative and quantitative methods are used in the exploratory research. Qualitative methods include on the textual analysis of legislative bills, supporting documentation from legal briefs to the court and other supporting archival documentation. Quantitative methods consist of data collected from TDC.

Since Texas is the only state to have a stalking law deemed unconstitutional, that state is used as a case study for stalking law construction and initial analysis of the effectiveness of such a statute. By using the case study design, the authors could evaluate, and identify similarities and differences in stalking statutes (Leedy and Ormrod, 2001). Since very little research has been performed on stalking laws, a case study provides a starting point to begin research on that particular issues. Where statutes exist, federal legislation has also been reviewed and compared to the State of Texas legislative actions. Data has been collected and categorized from all 50 states stalking laws. The data was then put into table format for analysis and comparison (Appendix F).

Archival Data

While research that uses archival data has potential sampling problems, this study controls for potential sampling errors by reviewing current stalking laws for all 50 states, federal stalking statutes plus the original (now defunct) 1993 Stalking Law for Texas (Webb, Campbell, Schwartz and Sechrest, 1971). For stalking law information, archival data was used to gain an evolutionary history law on the State of Texas’s involvement in passage of the stalking law as well as some aspects of the stalking law being utilized in criminal cases. This study primarily analyzes the State of Texas stalking statutes in their construction and functionality compared to existing (and potentially overlapping) State of Texas harassment statutes. The current State of Texas stalking statute form the basis from which to conduct comparative research with other state stalking statutes, federal stalking statutes and previous State of Texas 1993 stalking law. Each state had current penal codes online from where the statutes on stalking were gathered. The state’s current statute for stalking was then reviewed and analyzed for differences in definition of offense, construction of statutes, penalties for offenses and repeat offender clauses compared to the State of Texas’s stalking statutes (both the SB25 statute and the SB97 statute).
The second method used in the study consisted of data collected from the TDC on convictions and arrests for stalking offenses, however sparse. This department had no data on sentences handed down to offenders, parole violations or repeat offenders. Moreover, we were only provided with two years of data collected by the agency on convictions and arrests for stalking offenses. This clearly indicates that more data should be gathered for future longitudinal analysis of stalking law effectiveness in Texas. A longitudinal analysis would prove beneficial to future research endeavors on stalking law effectiveness.

This study has no reactive measurement error since no respondents are used throughout the research (Webb, Campbell, Schwartz and Sechrest, 1971). The study does use physical traces to support the initial hypothesis through converging evidence of statistical data (Webb, Campbell, Schwartz and Sechrest, 1971). Through the use of triangulation and inference, data can be used to support the hypothesis and allow for sound recommendations or provide a solid platform for future research (Denzin, 1978).

Background of Stalking Legislation

Stalking has not always been used to describe the current state of mind regarding the actions defined as such. For example, in 1980, John Lennon was shot and killed outside his residence by a person who had been obsessed with killing him to attain notoriety. (IMDB, 2003) The crime was classified as a homicide even though the murderer had taken an autograph from Mr. Lennon earlier that day. Is this an instance of stalking, premeditated murder, or a deranged killing? Perhaps all of the actions are applicable. Does the victim have to be aware that the actor is intending harm, or is/are the act(s) in and of themselves considered stalking? Stalking crimes such as John Lennon’s homicide frequently include both definitions of stalking. Approaching someone repeatedly, with the intent on doing harm or harassment would seem to be a more accurate definition of a stalker for criminal justice purposes. Previously, stalking actions have been charged under anti-harassment, homicide, terrorist threats, assault and battery statutes and a panoply of other related criminal acts.

Media Influence upon Passage of Stalking Legislation

On July 18, 1989, the public became acutely aware of “stalking” with the murder of Rebecca Schaffer, co-star of the TV show “My Sister Sam,” perpetrated by an obsessive fan who shot her in front of her apartment in Hollywood, California (IMDB 2003). Since then, more media attention has been focused on stalkers and their victims. Soon after Schaffer’s death, states began to write and pass legislation dealing with stalkers because public perception generally held that existing laws were ineffective in dealing with this type of criminal act. The public outcry in the early 1990’s for a bill that would effectively control “stalkers” was heightened due to the victimization of several women in highly publicized cases.

While staking existed before the public outcry began in the 1990’s, world events soon pushed legislators to create new laws that could also be used against stalkers. On September 11, 2001, the world became a different place as a result of the terrorist attacks on the United States. Since that time, legislation such as the Patriot Act has given the law enforcement community more leverage and leeway to fight terrorism. However, the question must also be asked, “Has the current sweep of legislation affected current efforts to combat stalking, and are stalking laws really necessary in light of such powerful new tools at law enforcement’s fingertips?” Here, we review Texas legislation efforts and history as they pertain to the Texas Stalking statute.

Constitutional Issues

Texas Stalker Law – Amended Version

In 1993, the Texas legislature began to create specific anti-stalking statutes to deal with stalking. Prior to proposing legislation, several questions were reviewed. First, by what process is a stalker or stalker’s actions determined? In the State of Texas, Penal Code section 42 covered harassment and other terrorist threats (Appendix A). Other criminal offenses such as assault and battery, sexual assault and battery, and homicide are likewise covered under other existing Texas Penal Code sections. So what exactly did the Texas legislation add to the existing penal code that did not previously cover stalkers or stalking actions?

In the new Senate Bill 25, the Texas Legislature added to section 42 by specifically targeting stalkers and stalkers’ actions. As seen below, Senate Bill 126—as amended to the Texas Penal Code—moved the Texas Stalker Law into a separate section of 42.071.

Sec. 42.071

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or
embarrass another, he:
(1) on more than one occasion engages in conduct directed specifically toward
another person, including following that person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass that person; and
(2) on at least one of those occasions by acts or words threatens to inflict bodily
injury on that person or to commit an offense against that person, a member of
that person's property.
(b) An offense under this section is a Class A misdemeanor, except that the offense is a
felony of the third degree if the actor has previously been convicted under this section.
(c) It is an affirmative defense to prosecution under this section that the actor was engaged in conduct that consisted of activity in support of constitutionally or statutorily protected rights.
(d) In this section, "family" has the meaning assigned by Section 71.01, Family Code.
(Texas Penal Code, 1995)


In Sec. 42.071 section, the key to the passage of the law was repeated behavior. In this way, the legislature defined a stalker or stalkers’ actions as repetitive occurrences directed toward another person. This statute also assesses additional penalties if the actor is convicted under the statute, and is in turn convicted a second time under the Texas Stalker Law. On the second conviction, an actor’s penalty is not a misdemeanor, but a felony.

In 1996, the Texas Court of Criminal Appeals ruled that the Texas Stalker Law 1993 and 1995 revisions were unconstitutional due to three provisions in the law that conflicted with the right to free speech. According to Dworaczyk:

The Court of Criminal Appeals said of the 1993 statute: ‘The words ‘annoy’ and ‘alarm’ remain in the statute although they are now joined by the words ‘harass,’ ‘abuse,’ ‘torment,’ and ‘embarrass.’ But all these terms are joined with a disjunctive ‘or,’ and thus do nothing to limit the vagueness originally generated by ‘annoy’ and ‘alarm.’ Moreover, the additional terms are themselves susceptible to uncertainties of meaning.” The court also said the law lacks a reasonable person standard, which is commonly used in laws to determine how a reasonable person would act in similar prohibited conduct and the lack of a “reasonable person” standard for determining when conduct becomes stalking; the lack of requirement that two acts of stalking have a link or “nexus;” and the law’s pre-1995 requirement that one previous incident of stalking have been reported to law enforcement for an offense to occur (Dworaczyk, 1997)’

Several interest groups then began to rally for and against a new Texas Stalker Law. The American Civil Liberties Union (ACLU) attempted to ensure the rights and freedoms associated with speech, while victim advocate groups such as the Texas Journal of Women and the Law wanted stiffer penalties against stalkers and improved protection for victims.

Misapplications of the Stalking Law

In 1993 the Texas Stalker Law was used against Operation Rescue to restrict their efforts to protest against abortion doctor Norman Tompkins. In an amicus curiae brief presented by the American Civil Liberties Union Foundation of Texas, attorneys Michael F. Linz and Frank D. Chandler contended that the abortion protester's free speech rights must be protected, but so should Dr. Tompkin's right to privacy. The American Civil Liberties Union cited the United States Constitution's First Amendment, and the Constitution of the State of Texas, Article 1, Section 8, for the protection of free speech. The then new law had already been "tested" by the judiciary in Texas in a suit brought against abortion protesters, alleging harassment of Dr. Norman Tompkins at his church, private residence and work place.

Under the Texas Stalker Law Texas Penal Code Sections 42.07 (1,) (2,) (4,) and (7A, B,), the defendants were prohibited from protesting at the Tompkin family home, work, and church. Does this decision infringe on the rights of the defendants to free speech? The law does not infringe upon their right to free speech in front of his workplace, where it is acceptable to protest, as long as entrance is not denied or blocked. The Texas Stalker Law does have an exemption clause under the section 42.07, subsection C (e) which guarantees the defendants right to peaceful assembly under the United States Constitution's First Amendment. However, the defendants could be—and were—prosecuted under the Texas Stalker Law for the invasion of privacy of Dr. Tompkin's private residence and church.

Could the protesters have been tried on other sections of the Texas Penal Code under the clauses of harassment or terrorist threats? What the media and the legislature did not disclose to the public was that the specifications of the Texas Stalker Law were already covered by the various sections in the Texas Penal Code under terrorist threats, harassment, sexual harassment, sexual assault, assault, and battery. As can be seen from Appendix A, the 1993 Texas Stalker Law (SB 25, 1993) had very few additions to offer to the previously existing Texas Penal Code, and was very vague in the definition of what a stalker is, or is not.
The result of Norman Tompkin's criminal case against Operation Rescue proved to be a futile gesture as the jury found Operation Rescue not guilty of stalking under a law. However, a civil suit brought against Operation Rescue by Dr. Tomkins resulted in a large award to Dr. Tomkins and forced Operation Rescue to close. Would civil suits against such organizations be more effective than criminal action? This has not been discussed by law enforcement agencies since they generally view these actions as criminal instead of civil.

Texas Stalking Law ruled Unconstitutional

The impetus for setting the agenda in 1997 for a new stalking law in Texas was the 1996 decision made by the Texas Supreme Court that the Texas Stalking Law statute (SB25, 1993) was unconstitutional due to first amendment right violations. The court found that to “annoy” or “alarm” a person is well within 1st Amendment rights for free speech and does not in and of itself carry the weight of inflicting harm to an individual. In formulating law and public policy, legislators now had several difficult questions to answer before drafting and passing legislation again. The first question was, “What defines a stalker or stalker actions?” And, as the Texas legislature would soon find out, it needed to determine which statutes ran the risk of violating 1st Amendment rights and being declared unconstitutional. Lastly, it needed to determine if the existing penal code already significantly guarded would be victims against stalkers and their actions. Each of these questions needed to be addressed before any legislative action could be taken.

Role of the Executive Branch

In 1996, then Governor George W. Bush vowed that rewriting the Texas Stalker Law statute was a legislative emergency (Tinsley 1996). The push was concurrent with the new federal legislation that was sponsored in part by Kay Bailey Hutchinson (R-TX) which forbade stalking across state lines and on federal property. The Interstate Stalking Punishment and Prevention Act of 1996 (P.L. 104 – 201 Sec. 1069 also made restraining orders valid from one state to another. (National Conference of State Legislatures 1997)

Another available resource was the ability for states to have access to the National Crime Information databases that dealt with offenders who were affiliated with the act of stalking. The federal government made state grants available to assist with the processing and entering of data on offenders, giving grant money to non-profit organizations for technical assistance and training, as well as recommending an increase in intrastate communication (Public Law 103-322, September 13th, 1994). Clearly the federal government was making an effort to curb this category of crime, but how effective will a federal stalking law be?

In 1997, the Texas Legislature took another effort at rewriting the Texas Stalker Law statute in the form of Senate Bill 97. Tinsley (1996) states:
Until the new law is passed, prosecutors will rely on other state laws, such as those prohibiting harassment, assault and threats, to protect stalking victims.

This statement tends to indicate that existing statutes could handle prosecution and arrest of stalkers. Prosecutors were armed with enough statutes to convict stalkers of harassment, terrorist threats, and assaults. So why did the state legislature not make the existing laws more comprehensive instead of passing a new law?
Anatomy of a Bill – 2nd Texas Stalking Law

Senate Bill 97 was authored by Senator Mike Moncrief, and authored and co-authored 29 other senators, and was intended to put constitutional anti-stalking laws back into the Texas Penal Code. Both the Senate and House of Representatives acted quickly to move the bill for a vote and through the committee system (Nelson, 1997). Because Governor Bush declared stalking laws a legislative emergency, committees could review the bill in the first 60 days of the session (Tinsley 1996). Senate Bill 97 was referred to two committees: the House Committee On Select Committee, and the Criminal Justice Committee. The Texas House of Representatives had a companion for Senate Bill 97 in the form of House Bill 2 authored by Representative McCall and co-authored by 51 representatives, sent to the House Committee of Criminal Jurisprudence. These bills were identical and two amendments were added from the House. The amendments recommended the following changes (Texas Legislation Online 2003):


EXPLANATION OF AMENDMENTS

Amendment #1 added language stipulating that the actor knows or reasonably believes the other person will regard as threatening bodily injury to that person, a member of that person's family or household; to that person's property.

Amendment #2 adds other person's "household" to those placed in fear of bodily injury or death under the definition of stalking.
(Texas Senate Online 2003)

These amendments required the victim to believe that physical injury or threat was eminent. Thus, the free speech conflict with the terms of “alarm” or “annoy” was qualified with the addition of a penal code section that would indicate that the actor(s) were intent upon inflicting harm upon the victim. The additional amendment of “household” to the definition of stalking indicated that the Texas Legislature preserved the home as a sanctuary that should not be invaded by an actor using even “alarming” or “annoying” tactics.

Other changes that were instituted from the previous stalking law and current Texas Penal Code include a number of adaptations. In section 1 of 42.072, an increase in penalty is dictated under SB97. This addition was also in the former SB25 Texas Stalker Law. In Section 2 of 42.072, the unconstitutional aspect of the previous SB25 (a) Texas Stalker law, subsection 4 has been deleted from SB97. Section 3, Section 4 and Section 5 all made procedural changes to 17.29 (b), 17.292(a), and 17.46(a) in the Texas Penal Code. In Section 6 of SB97, the court was given direction to restrict a prior convicted offender of 42.072 from having direct contact with the victim, or the intended victim of the actor. Sections 7, 8, 9, and 10 of SB97 made changes to the Texas Stalker Law to make the statute conform to judicial review.

As can be seen in Appendix C, passage of the Texas Stalking Law through the legislature appears to have been very quick and decisive with only two amendments added between the Texas House of Representatives and the Texas Senate versions, and the input from their respective committees. The bill was voted on by the Senate which passed 29 Yeas and 0 Nays, while the House passed the bill with 147 Yeas and 0 Nays. The Senate voted unanimously to accept the House’s amendments with a vote of 30 yeas and 0 Nays. The bill was read by the Texas Senate for the first time on January 14, 1997, and was signed into law by the governor on January 28, 1997. It took only fourteen days for the passage of the bill.
Constitutional Challenges to Other State Stalking Statutes

In Arizona, the definition of harassment has been clarified to include stalking as a definitional element instead of creating a new separate stalking statute (United States Department of Justice, 2003.). For Arizona, no legal challenges have been set forth on the amended harassment statutes. In California, the first state to pass stalking legislation, the California Penal Code 646.9, has been legally challenged twice. The first legal challenge was based on the “Vagueness and over breadth” of the anti-stalking provision. The second legal challenge dealt with “Ambiguous construction” of the statute. However, both legal challenges failed to overturn the statute (United States Department of Justice, 2003.).

Legal challenges to existing harassment statutes that were amended to combat stalkers, have been brought against only Washington and Kentucky. However, other states that formulated new anti-stalking laws apart from existing harassment statutes have had more legal challenges to those laws than did states that simply amended existing statutes (United States Department of Justice, 2003.). Most of the legal challenges to other states anti-stalking laws have also come in the form of “vagueness”, “over breadth”, or “ambiguous construction”. All three areas of legal challenges tend to target protection of free speech rights granted under the constitution.
This observation alone would indicate an increased risk and cost to states that formulate new anti-stalking statutes instead of amending existing harassment statutes. Is formulating new anti-stalking laws considered wise public policy in light of the costs that can be incurred? For instance Texas has already incurred massive costs when the state attempted to defend in court the 1993, SB 25 Stalking Law. This cost Texas taxpayers money not only defending the statute, but passing the legislation in the first place. Texas taxpayers ended up paying for a second round of legislation to be passed, and will undoubtedly end up paying for any future defense of that statute.

Other States’ Legislative Approaches

Texas has opted to append a section on the existing penal code for harassment. Two other states, Illinois and Massachusetts, will be compared on the approach and terminology used by their legislature in formulating legislation contending with stalking. In Illinois, two elements define the crime of stalking. The first element is the actor following the victim twice and/or putting the victim under surveillance, and at any time threatening the victim with or placing them in reasonable apprehension of bodily harm, sexual assault, confinement or restraint.(Devine, 2003) In Massachusetts, a stalker is defined by the following legal statute:

Whoever, willfully, maliciously and repeatedly follows or harasses another person (male or female) and makes a threat with the intent to place that person in imminent fear of death or serious bodily injury. Such conduct, acts or threats described in this paragraph shall include, but not be limited to, conduct, acts or threats conducted by mail or by use of a telephonic or telecommunications device including but not limited to, electronic mail, internet communications, and facsimile communications. [see Comm. v. Kwiatkowski, 418 Mass 543 (1994)]. (State of Massachusetts, 2003)

These examples present two very different legislative approaches by states to resolve the issue of criminal stalking. The Illinois approach is inherently simplistic in the manner in which the statute is worded, whereas the Massachusetts initiative is highly detailed in its definition of what actions constitute stalking. The Texas legislative initiatives have combined both approaches. Initially, Texas drafted a vague statute to combat stalking that was simply appended to existing statutes for harassment initial Texas Stalking Law (SB 25, 1993 - that was legally successfully challenged) and second Texas Stalking Law (SB97, 1997 – current stalking statute). Then, the Texas legislature began to add more detailed specifications in future legislative actions such as SB139 electronic stalking, 2003 (See Appendix D). Referring to Table 1, all ten states have a different approach and definition to what a stalker is and how harsh the punishment should be for a person convicted of a stalking offense.

What Statues Already Covered Stalking Actions

Since the passage of the Stalker Law, many questions about the law’s effectiveness and constitutionality are evident. How effective is a law that simply adds one amendment to the current Texas Penal Code Section 42.07, subsections 1-6? The Texas Stalker Law is the new seventh subsection under 42.071. Questions remain as to whether the new subsection adequately defines what stalking is, and whether the new subsection repeats other subsections of the Texas Penal Code currently in existence? How much has the Texas Stalking Law been used over the past 10 years, and how effective has it been in the cases in which it has been utilized? Is the Texas Stalking Law truly a deterrent to stalkers? Was the Texas legislature justified in passage of yet another bill?

As can be seen, the sections 42.01, 42.03, and 42.07 already can be used in place of section 42.071 Stalking amendment. Sections 42.02, 42.03, and 42.04 should be used to determine whether organizations are within their guidelines of free speech. Section 42.071 increases sentencing for anyone who is convicted of stalking, but has no other impact upon the existing penal code sections. While more laws can be seen as added protection for citizenry of the state, this can in effect have a negative impact. Adding more statutes to the existing penal code potentially can allow the law to be misused for the original intent, be confusing for law enforcement officials and has a bigger chance of being declared unconstitutional by the judicial system. There has been no study to suggest that adding stalking law statutes have reduced or stopped criminal activity in the area of stalking. Are current harassment statutes being used by law enforcement instead of stalking statutes for arrests and convictions? Has the stalking law had any effect on repeat offenders in Texas since 1997?

Data Gathered from TDC

The data gathered from TDC consists of arrests and convictions for 2002 and 2003. The data is very limited in content and five years of data would be preferable. The data is as follows:

Table 1. Stalking Arrest and Conviction Data from TDC

Type of Offense

2003

Arrests 2,431

Convictions 664

2002

Arrests 2,359

Convictions 675


The data demonstrate how convictions have decreased by 1.66% over a year’s time and that arrests have increased by 2.96% over a year’s time. What the data seems to indicate is that law enforcement officials may be more likely to arrest suspects for stalking but states are not very likely to convict under those statutes (28.6% conviction rate for 2002 and 27.3% conviction rate for 2003).

New Legislation for the State of Texas

In addition to traditional stalking, new legislation combats variants of the crime, such as “cyber-stalking,” which uses electronic methods to contact or harass the intended target. Stalking by Electronic Communications - SB139 (Appendix D) was signed by the governor June 15, 2001 and became effective on September 1, 2001. (Appendix D) As a response to September 11, 2001, will stalking laws increase in usage, or will other new anti-terrorism law be used in place of existing anti-stalking statutes at the state and federal level? These questions need to be addressed before any additional anti-stalking statutes are passed. Increases in technology do need to be addressed when proposing new legislation since the Internet provides a complex venue for stalking that did not exist in the past. In this respect, existing laws and statutes may not be able to address the rapid changes in society or the way it communicates.

Instead of remedying the situation by adding amendments, the legislature needs to thoroughly define exactly what a stalker is, and what type of behavior the stalker exhibits. In Florida, in 1993, a judge stated "in part, that he did not know what ‘repeatedly’ meant and another said it clearly meant any number of incidents ‘greater than one’ (Washington Post, May 23, 1993).”
Instead of probation, imprisonment, or restraining orders, the legislature also needs to look at other alternatives such as more widespread use of electronic monitoring devices, tracking systems, and long-term counseling before resorting to more drastic measures such as imprisonment. As stated in a Dallas Morning News article, "This is an improvement over jail, in the sense that jail is an artificial environment, Judge Goodman stated of electronic monitoring." (Shannon Buggs, August 8, 1993)

The new initiatives need to be solely targeted towards predators who stalk individuals, not groups that are invading privacy. There are other laws that currently can handle those types of infringements. Several additional problems faced by legislatures as they look towards solutions will include: Who will foot the bill? How much will a new policy cost? What will be the long-term benefits on a new law or state policy?

The media in a free society often create situations in which legislature is forced to act due to public concern. The Texas Stalker Law (1997, SB 97) is one of the products of this type of legislative initiative. The first law was already "tested" by the judiciary in Texas in a suit brought against abortion protesters, alleging harassment of Dr. Norman Tompkins at his church, private residence, and work place, and ultimately it was ruled unconstitutional. Dr. Tompkins himself stated: "Federal action is needed because Texas, like many other states, does not have criminal laws to protect him" (Susan Feeney, April 2, 1993). The federal government in 42 USC 14015 section 40601 subtitle F - "National Stalker and Domestic Violence Reduction" does give states some additional resources in 1994 that were previously unavailable to the states.

The law enforcement community should enforce existing Texas Penal Code violations, such as terrorist threats, harassment, sexual harassment, etc., whenever applicable. In cases where the penal code was not enforced, stalkers have been allowed to operate with little fear of being stopped, or of reprisal from law enforcement officials. Such was the case with Nicole Brown-Simpson, where law enforcement did not take the problem seriously enough.

Discussion and Conclusion

There is no evidence to support the necessity for a separate stalking law. Existing laws in the Texas Penal Code already covered stalking offenses. Justification exists for adding a repeat offender escalation clause to the existing penal code to deter stalking behavior. However, the statute did give law enforcement officials more authority to operate against repeat offenders. Yet it is difficult to determine how effective the statute has been on the reduction of stalking behaviors. To reduce stalking, an in depth solution will be required that goes beyond adding a separate statue to the existing Texas Penal Code Section. The issues of stalkers’ mental health or culture in relation to these crimes are not being addressed. For criminal actions a repeat offender clause attached to the existing penal codes should be able to combat escalation of stalking effort more effectively and will reduce states’ to the possibility of a constitutional challenge. More data collection will be required to determine if stalkers that are convicted for harassment or stalking offenses repeatedly are really dissuaded from future stalking behaviors. Data should also be collected to determine the factor of mental health and culture influence stalking behaviors in an effort to determine the root causes of stalking behavior.

Research endeavors could include stalking law parole violators, repeat offenders of the stalking law and analysis of how harsh the sentencing would be for a person convicted of stalking. An additional component that should be added to the existing research is a series of interviews with both law enforcement and stalking victims on the effectiveness of the stalking law. Additional data on convictions and arrests for stalking offenses should continued to be gathered to determine if the current trend of arrests and convictions for stalking offenses will continue.

A comparison of persons convicted of traditional stalking methods or a person using technological means to perform stalking actions could prove to be useful in determining the effectiveness of current stalking law statutes and how flexible those statutes are for providing protection to citizens from those types of actions. Gathering data on mentally ill patients that perform stalking actions on persons that are not arrested or convicted of stalking would be another avenue of research that should be explored. Which brings back the point of needing a separate “stalking law” for the state. Ultimately it is the duty of formulating an effective stalking law or amending harassment statutes is a state action, and should not the federal government responsibility. Due to the diverse populations and cultures across the nation, this law must be made at the local level to have the most effect. In the case of Texas, the legislature has spoken and passed a separate statute to comply with public opinion. If the law is successfully challenged, the taxpayers will be footing the bill for the defense and footing the bill to pass yet another statute if the current law is struck down on constitutionally issues. Passing legislative statutes will not resolve stalking behaviors. It will be necessary to collect data and perform research to determine what solutions may be more effective that passing stalking legislation.



Appendix A – Existing Section 42.01 – 42.06 Texas Penal Code 1995

Existing Penal Code Violations for 42.01 - 42.06

Subsection 42.01 - (a) A person commits an offense if he intentionally or knowingly:
(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by it's very utterance tends to incite an immediate breach of the peace;
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;
(3) creates, by chemical means, a noxious and unreasonable odor in a public
place;
(4) abuses or threatens a person in a public place in an obvious manner;
(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;
(6) fights with another in a public place;
(7) enters on the property of another and for a lewd or unlawful purpose looks into a dwelling on the property through any window or other opening in the dwelling;
(8) while on the premises of a hotel or comparable establishment, for a lewd or unlawful purpose looks into a guest room not his own through a window or other opening in the room;
(9) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;
(10) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
(11) discharges a firearm on or across a public road; or
(12) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act;
(b) It is a defense to prosecution under Subsection (a) (4) that the actor had significant provocation for his abusive or threatening conduct.
(c) For purposes of this section;
(1) an act is deemed to occur in a public place or near a private residence if it produces offensive or proscribed consequences in the public place or near a private residence; and
(2) a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance.
(d) An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(9) or (a) (10), in which case it is a Class B misdemeanor.

Subsection 42.02-(a) For the purpose of this section, "riot" means the assemblage of seven or more persons resulting in conduct which:
(1) creates an immediate danger of damage to property or injury to persons;
(2) substantially obstructs law enforcement or other governmental functions or services; or
(3) by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right.
(b) A person commits an offense if he knowingly participates in a riot.
(c) It is a defense to prosecution under this section that the assembly was at first lawful and when one of those assembled manifested an intent to engage in conduct enumerated in Subsection (a), the actor retired from the assembly.
(d) It is no defense to prosecution under this section that the assembly was at first lawful and that another who was a party to the riot has been acquitted, has not been arrested, prosecuted, or convicted, has been convicted of a different type or class of offense, or is immune from prosecution.
(e) Except as provided in Subsection (f) an offense under this section is a Class B misdemeanor.
(f) An offense under this section is an offense of the same classification as any higher grade committed by anyone engaged in the riot if the offense was:
(1) in the furtherance of the purpose of assembly; or
(2) an offense which should have been anticipated as a result of the assembly.

Subsection 42.03-(a) A person commits an offense if, without legal privilege or authority, he intentionally, knowingly, or recklessly:
(1) obstructs a highway, street, sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access, or any other place used for the passage of persons, vehicles, or conveyances, regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others; or
(2) disobeys a reasonable request or order to move issued by a person the actor knows to be or is informed is a peace officer, a fireman, or a person with authority to control the use of the premises:
(A) to prevent obstruction of a highway or any of those areas mentioned in Subdivision (1); or
(B) to maintain public safety by dispersing those gathered in dangerous proximity to a fire, riot, or other hazard.
(b) For purposes of this section, "obstruct" means to render impassible or to render passage unreasonably inconvenient or hazardous.
(c) An offense under this section is a Class B misdemeanor.

Subsection 42.04- (a) If conduct that would otherwise violate Section 42.01 (a) (5) (Unreasonable Noise) or 42.03 (Obstructing Passageway) consists of speech or other communication, l of gathering with others to picket or otherwise express in a nonviolent religious questions, the actor must be ordered to move, disperse, or otherwise remedy the violation prior to his arrest if he has not yet intentionally harmed the interests of others which those sections seek to protect.
(b) The order required by this section may be given by a peace officer, a fireman, a person with authority to control the use of the premises, or any person directly affected by the violation.
(c) It is a defense to prosecution under Section 42.01(a) (5) or 42.03:
(1) that in circumstances in which this section requires an order no order was given;
(2) that an order, if given, was manifestly unreasonable in scope; or
(3) that an order, if given, was promptly obeyed.

Subsection 42.05-(a) A person commits an offense if, with intent to prevent or disrupt a lawful meeting, procession, or gathering, he obstructs or interferes with the meeting, procession, or gathering by physical action or verbal utterance.
(b) An offense under this section is a Class B misdemeanor.

Subsection 42.06-(a) A person commits an offense if he knowingly initiates, communicates or circulates a report of a present, past, or future bombing, fire, offense, or other emergency that he knows is false or baseless and that would ordinarily:
(1) cause action by an official or volunteer agency organized to deal with emergencies;
(2) place a person in fear of imminent serious bodily injury; or
(3) prevent or interrupt the occupation of a building, room, place of assembly, place to which the public has access, or aircraft, automobile, or other mode of conveyance.
(b) An offense under this section is a Class A misdemeanor unless the false report is an emergency involving a public primary or secondary school, public communications, public transportation, public water, gas, or power supply or other public service, in which event the offense is a state jail felony.

(Texas Penal Code, 1995)

Appendix B – Texas Stalker Law as Passed with Strikethroughs Removed

SB 97 Author: Moncrief / et al.
Sponsor: McCall / et al.
Last Action: 01/28/1997 E Effective immediately
Relating to the prosecution, punishment, and sentencing of a defendant charged with the offense of stalking.


AN ACT
1-1 relating to the prosecution, punishment, and sentencing of a
1-2 defendant charged with the offense of stalking.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 42, Penal Code, is amended by adding
1-5 Section 42.072 to read as follows:
1-6 Sec. 42.072. STALKING. (a)A person commits an offense if
1-7 the person, on more than one occasion and pursuant to the same
1-8 scheme or course of conduct that is directed specifically at
1-9 another person, knowingly engages in conduct, including following
1-10 the other person, that:
1-11 (1) the actor knows or reasonably believes the other
1-12 person will regard as threatening:
1-13 (A) bodily injury or death for the other person;
1-14 (B) bodily injury or death for a member of the
1-15 other person's family or household; or
1-16 (C) that an offense will be committed against
1-17 the other person's property;
1-18 (2) causes the other person or a member of the other
1-19 person's family or household to be placed in fear of bodily injury
1-20 or death or fear that an offense will be committed against the
1-21 other person's property; and
1-22 (3) would cause a reasonable person to fear:
1-23 (A) bodily injury or death for himself or
2-1 herself;
2-2 (B) bodily injury or death for a member of the
2-3 person's family or household; or
2-4 (C) that an offense will be committed against
2-5 the person's property.
2-6 (b) An offense under this section is a Class A misdemeanor,
2-7 except that the offense is a felony of the third degree if the
2-8 actor has previously been convicted under this section.
2-9 (c) In this section, "family," "household," and "member of a
2-10 household" have the meanings assigned by Section 71.01, Family
2-11 Code.
2-12 SECTION 2. Subsection (a), Section 25.07, Penal Code, as
2-13 amended by Chapters 658 and 1024, Acts of the 74th Legislature,
2-14 1995, is amended to read as follows:
2-15 (a) A person commits an offense if, in violation of an order
2-16 issued under Section 3.581, 71.11, or 71.12, Family Code, or under
2-17 Article 17.292, Code of Criminal Procedure, the person knowingly or
2-18 intentionally:
2-19 (1) commits family violence or an act in furtherance
2-20 of an offense under Section 42.072;
2-21 (2) communicates:
2-22 (A) directly with a protected individual or a
2-23 member of the family or household in a threatening or harassing
2-24 manner;
2-25 (B) a threat through any person to a protected
3-1 individual or a member of the family or household; and
3-2 (C) in any manner with the protected individual
3-3 or member of the family or household except through the person's
3-4 attorney or a person appointed by the court, if the order prohibits
3-5 any communication with a protected individual or a member of the
3-6 family or household; or
3-7 (3) goes to or near any of the following places as
3-8 specifically described in the order:
3-9 (A) the residence or place of employment or
3-10 business of a protected individual or a member of the family or
3-11 household; or
3-12 (B) any child care facility, residence, or
3-13 school where a child protected by the order normally resides or
3-14 attends
3-15
3-16
3-17
3-18
3-19 SECTION 3. Subsection (b), Article 17.29, Code of Criminal
3-20 Procedure, as amended by Chapters 656 and 661, Acts of the 74th
3-21 Legislature, 1995, is amended to read as follows:
3-22 (b) Before releasing on bail a person arrested for an
3-23 offense under Section 42.072, Penal Code, or a person
3-24 arrested or held without warrant in the prevention of family
3-25 violence, the law enforcement agency holding the person shall make
4-1 a reasonable attempt to give personal notice of the imminent
4-2 release to the victim of the alleged offense or to another person
4-3 designated by the victim to receive the notice. An attempt by an
4-4 agency to give notice to the victim or the person designated by the
4-5 victim at the victim's or person's last known telephone number or
4-6 address, as shown on the records of the agency, constitutes a
4-7 reasonable attempt to give notice under this subsection. If
4-8 possible, the arresting officer shall collect the address and
4-9 telephone number of the victim at the time the arrest is made and
4-10 shall communicate that information to the agency holding the
4-11 person.
4-12 SECTION 4. Subsections (a) and (b), Article 17.292, Code of
4-13 Criminal Procedure, are amended to read as follows:
4-14 (a) At a defendant's appearance before a magistrate after
4-15 arrest for an offense involving family violence or an offense under
4-16 Section 42.072, Penal Code, the magistrate may issue
4-17 an order for emergency protection on the magistrate's own motion or
4-18 on the request of:
4-19 (1) the victim of the offense;
4-20 (2) the guardian of the victim;
4-21 (3) a peace officer; or
4-22 (4) the attorney representing the state.
4-23 (b) The magistrate in the order for emergency protection may
4-24 prohibit the arrested party from:
4-25 (1) committing:
5-1 (A) family violence; or
5-2 (B) an act in furtherance of an offense under
5-3 Section 42.072, Penal Code;
5-4 (2) communicating:
5-5 (A) directly with a member of the family or
5-6 household in a threatening or harassing manner; or
5-7 (B) a threat through any person to a member of
5-8 the family or household; or
5-9 (3) going to or near:
5-10 (A) the residence, place of employment, or
5-11 business of a member of the family or household; or
5-12 (B) the residence, child care facility, or
5-13 school where a child protected under the order resides or attends.
5-14 SECTION 5. Subsection (a), Article 17.46, Code of Criminal
5-15 Procedure, is amended to read as follows:
5-16 (a) A magistrate may require as a condition of release on
5-17 bond that a defendant charged with an offense under Section 42.072,
5-18 Penal Code, may not:
5-19 (1) communicate directly or indirectly with the
5-20 victim; or
5-21 (2) go to or near the residence, place of employment,
5-22 or business of the victim or to or near a school, day-care
5-23 facility, or similar facility where a dependent child of the victim
5-24 is in attendance.
5-25 SECTION 6. Subsection (l), Section 11, Article 42.12, Code
6-1 of Criminal Procedure, is amended to read as follows:
6-2 (1) If the court grants community supervision
6-3 to a person convicted of an offense under Section 42.072,
6-4 Penal Code, the court may require as a condition of community
6-5 supervision that the person may not:
6-6 (A) communicate directly or indirectly with the
6-7 victim; or
6-8 (B) go to or near the residence, place of
6-9 employment, or business of the victim or to or near a school,
6-10 day-care facility, or similar facility where a dependent child of
6-11 the victim is in attendance.
6-12 (2) If the court requires the prohibition contained in
6-13 Subdivision (1)(B) of this subsection as a condition of community
6-14 supervision, the court shall specifically describe the
6-15 prohibited locations and the minimum distances, if any, that the
6-16 person [probationer] must maintain from the locations.
6-17 SECTION 7. Subdivision (1), Subsection (o), Section 8,
6-18 Article 42.18, Code of Criminal Procedure, as added by Chapter 10,
6-19 Acts of the 73rd Legislature, 1993, is amended to read as follows:
6-20 (o)(1) In addition to other conditions imposed by a parole
6-21 panel under this article, the parole panel may require as a
6-22 condition of parole or release to mandatory supervision that an
6-23 inmate serving a sentence for an offense under Section 42.072,
6-24 Penal Code, may not:
6-25 (A) communicate directly or indirectly with the
7-1 victim; or
7-2 (B) go to or near the residence, place of
7-3 employment, or business of the victim or to or near a school,
7-4 day-care facility, or similar facility where a dependent child of
7-5 the victim is in attendance.
7-6 SECTION 8. Subsection (a), Article 56.11, Code of Criminal
7-7 Procedure, is amended to read as follows:
7-8 (a) The institutional division of the Texas Department of
7-9 Criminal Justice shall notify the victim of the offense and local
7-10 law enforcement officials in the county where the victim resides
7-11 whenever a person convicted of a felony offense under Subsection
7-12 (a) as enhanced by Subsection (b) of Section 42.072, Penal
7-13 Code:
7-14 (1) completes the person's sentence and is released;
7-15 or
7-16 (2) escapes from a facility operated by the
7-17 institutional division.
7-18 SECTION 9. Section 501.006, Government Code, is amended to
7-19 read as follows:
7-20 Sec. 501.006. EMERGENCY ABSENCE. (a) The institutional
7-21 division may grant an emergency absence under escort to an inmate
7-22 so that the inmate may:
7-23 (1) obtain a medical diagnosis or medical treatment;
7-24 (2) obtain treatment and supervision at a Texas
7-25 Department of Mental Health and Mental Retardation facility; or
8-1 (3) attend a funeral or visit a critically ill
8-2 relative.
8-3 (b) The institutional division shall adopt policies for the
8-4 administration of the emergency absence under escort program.
8-5 (c) An inmate absent under this section is considered to be
8-6 in the custody of the institutional division, and the inmate must
8-7 be under physical guard while absent.
8-8 (d) The institutional division may not grant a
8-9 furlough to an inmate convicted of an offense under Section 42.072,
8-10 Penal Code.
8-11 SECTION 10. Section 42.071, Penal Code, is repealed.
8-12 SECTION 11. The importance of this legislation and the
8-13 crowded condition of the calendars in both houses create an
8-14 emergency and an imperative public necessity that the
8-15 constitutional rule requiring bills to be read on three several
8-16 days in each house be suspended, and this rule is hereby suspended,
8-17 and that this Act take effect and be in force from and after its
8-18 passage, and it is so enacted.

S.B. No. 97

__________________ ____________________
President of the Senate Speaker of the House

I hereby certify that S.B. No. 97 passed the Senate on January 16, 1997, by the following vote: Yeas 29, Nays 0; and that the Senate concurred in House amendments on January 27, 1997, by the following vote: Yeas 30, Nays 0.
______________________________
Secretary of the Senate

I hereby certify that S.B. No. 97 passed the House, with amendments, on January 23, 1997, by the following vote: Yeas 147, Nays 0, one present not voting.
______________________________
Chief Clerk of the House
Approved:

_______________________________
Date

_______________________________
Governor


Appendix C – Action Timeline on SB97

Action timeline on SB97

Bill Actions Sorted by ending Action Assignment

DESCRIPTION COMMENT DATE JOURNAL PAGE
S Received by the Secretary of the Senate 11/15/1996 0
S Filed 11/15/1996 0
S Read first time 01/14/1997 54
S Referred to Criminal Justice 01/14/1997 54
S Posting rule suspended 01/14/1997 54
E Governor submitted as emergency 01/15/1997 74
S Scheduled for public hearing on . . . . . 01/15/1997 0
S Considered in public hearing 01/15/1997 0
S Testimony taken in committee 01/15/1997 0
S Reported favorably w/o amendments 01/15/1997 84
S Committee report printed and distributed 12:51PM 01/15/1997 0
S Co-author authorized 01/16/1997 87
S Placed on intent calendar 01/16/1997 0
S Rules suspended 01/16/1997 90
S Printing rule suspended 01/16/1997 90
S Read 2nd time & passed to engrossment 01/16/1997 90
S Rules suspended 01/16/1997 90
S Record vote 01/16/1997 90
S Read 3rd time 01/16/1997 90
S Passed 01/16/1997 90
S Record vote 01/16/1997 90
S Reported engrossed 01/16/1997 0
H Received from the Senate 01/16/1997 117
H Read first time 01/16/1997 116
H Referred to Select Committee 01/16/1997 116
H Scheduled for public hearing on . . . . 01/21/1997 0
H Considered in public hearing 01/21/1997 0
H Testimony taken in committee 01/21/1997 0
H Amendment(s) considered in committee 01/21/1997 0
H Reported favorably as amended 01/21/1997 139
H Committee report filed with Chief Clerk 01/21/1997 139
H Committee report printed and distributed 10:31PM 01/21/1997 0
H 1 hr. notice-to suspend rules 01/23/1997 128
H Rules suspended 01/23/1997 129
H Read 2nd time 01/23/1997 129
H Amendment(s) offered 1-Place 01/23/1997 130
H Amendment amended 2-McCall 01/23/1997 130
H Amendment adopted as amended 1-Place 01/23/1997 130
H Amended 3-Pickett 01/23/1997 130
H Amendment tabled 4-Wilson 01/23/1997 131
H Passed to 3rd reading as amended 01/23/1997 131
H Rules suspended 01/23/1997 132
H Record vote RV #7 01/23/1997 132
H Read 3rd time 01/23/1997 132
H Passed 01/23/1997 132
H Record vote RV #8 01/23/1997 132
S House passage as amended reported 01/23/1997 156
S House amendment(s) laid before the Senate 01/27/1997 167
S Senate concurs in House amendment(s) 01/27/1997 168
S Record vote 01/27/1997 168
S Reported enrolled 01/27/1997 0
H Senate concurs in House amendment(s)-reported 01/28/1997 164
S Signed in the Senate 01/28/1997 172
H Signed in the House 01/28/1997 164
E Sent to the Governor 01/28/1997 182
E Signed by the Governor 01/28/1997 182
E Effective immediately 01/28/1997 0



Appendix D – Electronic Stalking Law – Texas SB 139

By Carona


S.B. No. 139
77R2377 KEL-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the prosecution of the offense of harassment.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 42.07(a), Penal Code, is amended to read
1-5 as follows:
1-6 (a) A person commits an offense if, with intent to harass,
1-7 annoy, alarm, abuse, torment, or embarrass another, he:
1-8 (1) initiates communication or causes the initiation
1-9 of communication by mail or any other written form of communication
1-10 or by electronic or mechanical means, including the use of a
1-11 telephone or telegraph, [telephone or in writing] and in the course
1-12 of the communication makes a comment, request, suggestion, or
1-13 proposal that is obscene;
1-14 (2) threatens, by telephone or in writing, in a
1-15 manner reasonably likely to alarm the person receiving the threat,
1-16 to inflict bodily injury on the person or to commit a felony
1-17 against the person, a member of his family, or his property;
1-18 (3) conveys, in a manner reasonably likely to alarm
1-19 the person receiving the report, a false report, which is known by
1-20 the conveyor to be false, that another person has suffered death or
1-21 serious bodily injury;
1-22 (4) causes the telephone of another to ring repeatedly
1-23 or makes repeated telephone communications anonymously or in a
1-24 manner reasonably likely to harass, annoy, alarm, abuse, torment,
2-1 embarrass, or offend another;
2-2 (5) makes a telephone call and intentionally fails to
2-3 hang up or disengage the connection; or
2-4 (6) knowingly permits a telephone under his control
2-5 to be used by a person to commit an offense under this section.
2-6 SECTION 2. (a) The change in law made by this Act applies
2-7 only to an offense committed on or after the effective date of this
2-8 Act. For purposes of this section, an offense is committed before
2-9 the effective date of this Act if any element of the offense occurs
2-10 before the effective date.
2-11 (b) An offense committed before the effective date of this
2-12 Act is covered by the law in effect when the offense was committed,
2-13 and the former law is continued in effect for that purpose.
2-14 SECTION 3. This Act takes effect September 1, 2001.


Appendix E

The State of Texas Health and Safety Code
CHAPTER 573. EMERGENCY DETENTION
SUBCHAPTER A. APPREHENSION BY PEACE OFFICER
Sec. 573.001. Apprehension by Peace Officer Without Warrant.
(a) A peace officer, without a warrant, may take a person into custody if the officer:
(1) has reason to believe and does believe that:
(A) the person is mentally ill; and
(B) because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and
(2) believes that there is not sufficient time to obtain a warrant before taking the person into custody.
(b) A substantial risk of serious harm to the person or others under Subsection (a)(1)(B) may be demonstrated by:
(1) the person's behavior; or
(2) evidence of severe emotional distress and deterioration in the person's mental condition to the extent that the person cannot remain at liberty.
(c) The peace officer may form the belief that the person meets the criteria for apprehension:
(1) from a representation of a credible person; or
(2) on the basis of the conduct of the apprehended person or the circumstances under which the apprehended person is found.
(d) A peace officer who takes a person into custody under Subsection (a) shall immediately transport the apprehended person to:
(1) the nearest appropriate inpatient mental health facility; or
(2) a facility deemed suitable by the county's mental health authority, if an appropriate inpatient mental health facility is not available.
(e) A jail or similar detention facility may not be deemed suitable except in an extreme emergency.
(f) A person detained in a jail or a nonmedical facility shall be kept separate from any person who is charged with or convicted of a crime.

Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1, 1991.

(State of Texas, 1999)

Appendix F

Cyberstalking Laws, Related Offenses, and Penalties in Ten States
State Penalties for Cyberstalking - 1
State

1. CA – No specific penalty on conviction for Cyberstalking
2. CO - No specific penalty on conviction for Cyberstalking
3. FL – Misdemeanor 1st Degree for Cyberstalking Offenses
4. IL – Felony Class 4 and Class 3 for Cyberstalking Offenses
5. MA - No specific penalty on conviction for Cyberstalking
6. MI - No specific penalty on conviction for Cyberstalking
7. NY - No specific penalty on conviction for Cyberstalking
8. OH – Felony 5th, 4th and 3rd Degrees for Cyberstalking Offenses
9. PA - No specific penalty on conviction for Cyberstalking
10. TX - No specific penalty on conviction for Cyberstalking

State Penalties for Harassment - 2
State

1. CA – No specific penalty on conviction for Harassment
2. CO – Misdemeanor Class 3 for Harassment Offenses
3. FL – No specific penalty on conviction for Harassment
4. IL – Misdemeanor Class A and B for Harassment Offenses
5. MA - No specific penalty on conviction for Harassment
6. MI - No specific penalty on conviction for Harassment
7. NY – Misdemeanor Class B for Harassment Offenses
8. OH – No specific penalty on conviction for Harassment
9. PA – Misdemeanor 3rd Degree for Harassment Offenses
10. TX - Misdemeanor Class A and B for Harassment Offenses

State Statutes for Defining Various Stalking Offenses - 3
State

1. CA – Definition of Stalking, Terroristic Threatening, Credible Threat and Harassment
2. CO – Definition of Stalking, Definition of Credible Threat and Harassment
3. FL – Definition of Stalking, Definition of Credible Threat and Harassment
4. IL – Definition of Stalking, Aggravated Stalking, Aggravated Harassment and Harassment
5. MA – Definition of Stalking and Harassment
6. MI – Definition of Stalking, Aggravated Stalking, Credible Threat and Harassment
7. NY – Definition of Stalking, Menacing, Aggravated Harassment and Harassment
8. OH – Definition of Stalking, Menacing and Aggravated Menacing
9. PA – Definition of Stalking and Harassment
10. TX – Definition of Stalking, Terroristic Threatening and Harassment